Enforcement of Foreign Judgments 2021 a Practical Cross-Border Insight Into the Enforcement of Foreign Judgments Sixth Edition

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Enforcement of Foreign Judgments 2021 A practical cross-border insight into the enforcement of foreign judgments Sixth Edition

Featuring contributions from:

Allen & Gledhill LLP Hanefeld Rechtsanwälte Pierre Thielen Avocats S.à r.l. Allen & Gledhill (Myanmar) Co., Ltd. Rechtsanwaltsgesellschaft mbH Portolano Cavallo Archipel Kennedys Rahmat Lim & Partners BMG Avocats King & Wood Mallesons Sébastien Champagne & Vanessa Foncke Boss & Young, Attorneys-at-Law Kubas Kos Gałkowski Soemadipradja & Taher Covington & Burling LLP LexOrbis Sorainen CRA – Coelho Ribeiro e Associados Macesic and Partners LLC Van Oosten Schulz De Korte GASSER PARTNER Attorneys at Law Machado Meyer Sendacz e Opice Advogados Williams & Connolly LLP Glimstedt Mori Hamada & Matsumoto GVZH Advocates Osborne Clarke LLP

CCommercialD DisputeR Resolution ISBN 978-1-83918-106-1 ISSN 2397-1924

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59 Tanner Street London SE1 3PL United Kingdom Enforcement of Foreign +44 207 3 67 0720 [email protected] www.iclg.com Judgments 2021

Sixth Edition Publisher Jon Martin

Associate Publisher Oliver Smith

Editor Contributing Editor: Oliver Chang Louise Freeman Senior Editor Sam Friend Covington & Burling LLP

Head of Production Suzie Levy

Chief Media Officer Fraser Allan

CEO Jason Byles

Printed by Ashford Colour Press Ltd.

Cover image www.istockphoto.com

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. Table of Contents

Expert Analysis Chapters

Beyond Brexit: Recognition and Enforcement of Judgments Between the UK and the EU 1 Louise Freeman & Shivani Sanghi, Covington & Burling LLP

European Union 5 Sébastien Champagne & Vanessa Foncke

International Enforcement Strategy – An Overview 12 Andrew Bartlett, Osborne Clarke LLP

Q&A Chapters

Belarus Luxembourg 17 Sorainen: Alexey Anischenko, Valeria Dubeshka & 93 Pierre Thielen Avocats S.à r.l.: Peggy Goossens Katsiaryna Hashko Malaysia Bermuda 98 Rahmat Lim & Partners: Jack Yow, Daphne Koo & 22 Kennedys: Mark Chudleigh & Lewis Preston Allen Choong

Brazil Malta 104 27 Machado Meyer Sendacz e Opice Advogados: GVZH Advocates: Dr. Karl Briffa, Dr. Ariana Falzon & Eduardo Perazza de Medeiros & Ariana Júlia de Dr. Nicole Sciberras Debono Almeida Anfe Myanmar 109 China Allen & Gledhill (Myanmar) Co., Ltd.: Minn Naing Oo 33 Boss & Young, Attorneys-at-Law: Dr. Xu Guojian Netherlands 113 Croatia Van Oosten Schulz De Korte: Jurjen de Korte & 40 Macesic and Partners LLC: Anita Krizmanic Geert Wilts

England & Wales Poland 47 Covington & Burling LLP: Louise Freeman & 118 Kubas Kos Gałkowski: Dr. Barbara Jelonek-Jarco & Shivani Sanghi Agnieszka Trzaska-Śmieszek

France Portugal 126 54 Archipel: Jacques-Alexandre Genet & CRA – Coelho Ribeiro e Associados: Rui Botica Santos & Michaël Schlesinger Mark Robertson

Germany Singapore 132 60 Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbH: Allen & Gledhill LLP: Tan Xeauwei & Melissa Mak Dr. Nils Schmidt-Ahrendts & Dr. Johanna Büstgens Spain India 139 King & Wood Mallesons: Alfredo Guerrero & 67 LexOrbis: Manisha Singh & Varun Sharma Fernando Badenes

Indonesia Sweden 72 Soemadipradja & Taher: Nira Nazarudin, 146 Glimstedt: Finn Stenström & Amanda Moberg Oene Marseille & Erie Hotman Tobing Switzerland 151 Italy BMG Avocats: Rocco Rondi, Guillaume Fatio & 76 Portolano Cavallo: Micael Montinari, Martina Lucenti, Isabelle Baroz-Kuffer Filippo Frigerio & Claudia Rivieccio USA 158 Japan Williams & Connolly LLP: John J. Buckley, Jr. & 82 Mori Hamada & Matsumoto: Yuko Kanamaru & Ana C. Reyes Yoshinori Tatsuno

Liechtenstein 87 GASSER PARTNER Attorneys at Law: Thomas Nigg & Domenik Vogt

Welcome

From the Publisher

Dear Reader, Welcome to the sixth edition of ICLG – Enforcement of Foreign Judgments, published by Global Legal Group. This publication provides corporate counsel and international practitioners with comprehensive jurisdiction-by-jurisdiction guidance to enforcement of foreign judgments laws and regulations around the world, and is also available at www.iclg.com. This year, three expert analysis chapters provide insight into the recognition and enforcement of judgments between the UK and EU beyond Brexit; laws and regulations in the EU; and international enforcement strategy. The question and answer chapters, which in this edition cover 25 jurisdictions, provide detailed answers to common questions raised by professionals dealing with enforcement of foreign judgments laws and regulations. As always, this publication has been written by leading enforcement of foreign judgments lawyers and industry specialists, for whose invaluable contributions the editors and publishers are extremely grateful. Global Legal Group would also like to extend special thanks to contributing editor Louise Freeman of Covington & Burling LLP for her leadership, support and expertise in bringing this project to fruition.

Jon Martin Publisher Global Legal Group Chapter 1 1

Beyond Brexit: Recognition and Enforcement of Judgments

Between the UK and the EU Louise Freeman

Covington & Burling LLP Shivani Sanghi

On 24 December 2020, the EU and the UK reached agree- The Brussels Regulation2 ment on the terms of the “EU-UK Trade and Cooperation Agreement” (the “Brexit Deal”), which came into effect from This predecessor instrument to the Brussels Recast Regulation 11 pm GMT on 31 December 2020. applies to the enforcement of judgments of courts in the EU While the Brexit Deal between the EU and the UK will be a given in proceedings commenced before 10 January 20153 source of relief for many businesses, it is silent on future judicial (and therefore has a long “tail” of relevance). This regulation cooperation for civil litigation. Nothing has directly taken the provides for a slightly more involved enforcement procedure place of the EU-wide regime that the UK previously relied on than that under the Brussels Recast Regulation. for, inter alia, determining jurisdiction, recognition and enforcement of UK judgments in EU Member States and Lugano Convention states, and vice versa. While the 2019 UK-EU The Brussels Convention4 Withdrawal Agreement contains certain transitional arrangements on these issues (typically, for proceedings or processes The Brussels Convention on civil jurisdiction and enforce- started by the end of the transition period), the Brexit Deal does ment of judgments was acceded to by the UK in 1978 and took not make any longer-term provision in these areas. effect under English law by way of the Civil Jurisdiction and Consequently, from the perspective of civil litigation, there has Judgment Act 1982. Although this was largely superseded by been a “hard-Brexit” outcome to negotiations between the UK the two Brussels Regulations, it retains some limited relevance and the EU. The UK has taken unilateral steps to limit the impact in the context of the enforcement in England and Wales of judg- of the end of the transition period on issues regarding conflicts ments from Gibraltar and certain dependent territories of EU of law and these are explored further below. Nonetheless, a Member States. degree of uncertainty remains, as to how effective the UK’s fall- back options will be in practice, and how EU Member States’ national courts will treat UK judgments in the future. Lugano Convention

Pre-Brexit Framework: Prior to 31 January 2020 The 2007 Lugano Convention on Jurisdiction and the It is important to briefly consider the regime prior to Brexit, before Enforcement of Judgments in Civil and Commercial Matters looking at how Brexit has impacted this framework. The prin- applies to the enforcement of judgments as between EU Member cipal elements of the pre-Brexit European enforcement frame- States and the EFTA (European Free Trade Association) States work are summarised below and detailed further in Chapter 2. of Iceland, Norway and Switzerland. It is modelled on the Brussels Regulation and therefore extends the Brussels regime for jurisdiction and judgments to those States. The UK was not The Brussels Recast Regulation1 an individual state party to the Convention, but was a party by virtue of its membership of the EU. As an EU Member State, the UK benefited from (and was obliged to comply with) the jurisdiction and enforcement mech- Framework under the Withdrawal Agreement: anisms under the Brussels Recast Regulation. From 31 January 2020 to 31 December 2020 The Brussels Recast Regulation seeks to give effect to the The UK left the EU on 31 January 2020 on the terms of the overarching principle that, once a judgment is obtained in any UK-EU Withdrawal Agreement.5 The purpose of the transition Member State court, it must be readily recognised and enforced period under the Withdrawal Agreement – from 31 January 2020 throughout the EU. Under this instrument, a judgment creditor to 31 December 2020 – was to preserve the status quo for a period can go to the enforcement authority in another Member State of time to allow the UK and the EU to negotiate an agreement (for example, where the debtor has assets), without any interme- to cover their future relationship. For the duration of the Brexit diary procedure being required, to enforce his judgment. transition period, the Withdrawal Agreement provided for the There is a high bar for refusal of recognition and enforce- EU regime (such as the Brussels Recast Regulation, the Brussels ment under the Brussels Recast Regulation, which means that, Regulation and the Lugano Convention) to continue to apply in general, a judgment creditor can be reasonably confident of to the UK. enforcing a judgment delivered in one Member State against an The Withdrawal Agreement also contained transitional provi- opponent in another. This system therefore allows free move- sions, which create a run-off period for the old regime. In ment of Member State judgments within the EU. particular, the Brussels Recast Regulation will continue to apply to

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the recognition and enforcement of judgments given in proceedings However, the Hague Convention is not a “one stop shop” solu- commenced before the end of the transition period and to “related” tion. In particular, it is limited to exclusive jurisdiction clauses proceedings that are commenced after the conclusion of the tran- and so would not apply to non-exclusive jurisdiction clauses or sition period; for example, those that arise from the same cause of to “asymmetrical” jurisdiction clauses (which seem unlikely to action, or involve the same parties. be considered “exclusive”, although this is yet to be finally deter- The UK has passed a statutory instrument6 which provides mined9). The Hague Convention also does not provide for the that, for its part, the UK courts will continue to apply the Lugano reciprocal recognition and enforcement of interim protective Convention rules to proceedings begun before the end of the tran- measures, such as interim injunctions or freezing orders. sition period, but it cannot dictate the approach of other Lugano There is also some uncertainty about whether courts of EU Convention parties. It is unclear whether Iceland, Norway or Member States will consider the UK as being a “contracting Switzerland would take the same approach, as the Withdrawal state” under the Hague Convention when considering exclusive Agreement does not include similar transitional provisions for the English jurisdiction clauses agreed between 1 October 2015 and Lugano Convention as for the Brussels Recast Regulation. 1 January 2021. UK legislation10 has provided that the Hague Convention applies uninterrupted to exclusive jurisdiction Post-Brexit Framework: From 1 January 2021 clauses concluded between 1 October 2015 (i.e. the date of the The transition period concluded on 31 December 2020 and on 1 UK’s entry into force through the EU) to 1 January 2021 (i.e. the January 2021, the UK severed its ties with the EU under the newly date of the UK’s independent accession). However, courts of agreed Brexit Deal.7 The Brexit Deal omits a bespoke agreement EU Member States may not adopt the same approach, and indi- on an ongoing regime for cross-border cooperation on jurisdic- cations to date from the European Commission11 suggest that tion and enforcement of court judgments, notwithstanding the the EU will likely not adopt the UK’s approach. successful conclusion of the UK-EU Withdrawal Agreement. (2) The Lugano Convention The Lugano Convention reflects earlier iterations of the Brussels Rules that cease applying Recast Regulation, and would be a more “full service” solution to the issue of civil judicial cooperation with the EU than the From 1 January 2021, the EU regime falls away. The Civil Hague Convention. Jurisdiction and Judgments (Amendment) (EU Exit) Regulations The UK submitted its application, on 8 April 2020, to accede to 2019, which came into force at the end of the transition period, the Lugano Convention in its own right with effect from 1 January revoked the Brussels Recast Regulation and its predecessors 2021. The unanimous approval of all contracting states (including as they applied in the UK and extinguished the effect of the the EU) is required for the UK’s accession, and is still pending. In Lugano Convention 2007 in the UK. the past, Switzerland, Iceland and Norway have issued statements The Brussels Recast Regulation and its predecessor the Brussels that they will support UK’s request for accession to the Lugano Regulation no longer apply in respect of the enforcement of Convention. However, the Brexit Deal does not contain refer- English judgments in EU Member State courts, as well as for ence to the UK’s request for accession to the Lugano Convention, the enforcement of judgments of EU Member State courts in and the European Commission has so far not been forthcoming England. As it is based on reciprocity, it is not a system that can with its consent, and it is possible that the EU will not agree to the be reinstated or replicated unilaterally by the UK. UK’s accession to the Lugano Convention. The Lugano Convention has also fallen away in respect of the enforcement of English judgments in EFTA State courts, as well as for the enforcement of judgments of EFTA State courts in Other instruments available to the UK England. Unless and until the UK is able to accede to the Lugano Steps taken by the UK Convention, the Hague Convention is likely to be the primary route by which judgments granted by a court designated in an exclusive choice of court agreement will be recognised and Given the absence of any new regime taking the place of the enforced between EU Member States and the UK. If the UK pre-Brexit EU regime, the UK has taken steps to plug the gaps is unable to accede to the Lugano Convention, and if proceed- with two international conventions in the field of civil judicial ings fall outside the scope of the Hague Convention, then UK cooperation. and EU Member State courts will have recourse to their own domestic laws and conflict of law rules to determine questions (1) The Hague Convention on Choice of Court Agreements The Hague Convention on Choice of Court Agreements8 is designed of jurisdiction and enforceability of judgments. Commercial to give effect to exclusive jurisdiction clauses, in particular by parties may therefore need to seek local law advice to confirm requiring that contracting states respect such clauses, and enforce the enforceability of English court judgments in EU Member judgments resulting from them. The Hague Convention has been States and vice versa; and whether any amendments to existing in force in the UK since 1 October 2015, when the EU (and the contracts might be required. UK by virtue of its EU membership) acceded to it. The non-EU The UK will fall back on pre-EU bilateral treaties with some 12 13 14 Hague Convention parties include Mexico, Montenegro and key EU jurisdictions, such as France, Belgium, Germany, 15 16 17 Singapore. The UK has now acceded to the Hague Convention as Austria, Italy and the Netherlands, which have all entered an independent contracting state (effective from 1 January 2021). into bilateral treaties with the UK. These treaties largely ensure The Hague Convention will be extremely helpful to those that judgments will be recognised and enforced reciprocally. with exclusive English jurisdiction clauses in their contracts. The UK has recently, in October 2020, also concluded a bilateral Pursuant to the Hague Convention, a judgment given by an treaty on enforcement of judgments with Norway.18 It should be English court (designated in an exclusive jurisdiction agreement noted that no new bilateral enforcement treaties with individual within the meaning of the Hague Convention) shall be recog- EU Member States should be expected, as the EU has “exclusive nised and enforced in the EU in accordance with the provisions competence” to reach agreements on these issues on behalf of of the Hague Convention and vice versa. its Member States.

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Beyond these solutions, the UK will apply its common law 6. Regulation 92 of the Civil Jurisdiction and Judgments rules to enforcement of EU27 judgments – these rules are (Amendment) (EU Exit) Regulations 2019. explored in the England & Wales chapter and are the same as 7. Trade And Cooperation Agreement Between The those applied to US judgments, for example. European Union And The European Atomic Energy As to enforcement of English judgments in the EU27, the UK Community, Of The One Part, And The United Kingdom will rely on general principles of international comity, which Of Great Britain And Northern Ireland, Of The Other mean that respect for, and enforcement of, clear judgments of Part, 24 December 2020. courts of competent jurisdiction are the norm even where no 8. Convention of 30 June 2005 on Choice of Court binding commitment to do so exists. Although more cumber- Agreements. some than the pre-Brexit EU regime, it is expected to be unusual 9. Etihad Airways PJSC v Lucas Flother [2020] EWCA Civ 1707, for an EU27 national court to disregard a clear English judg- paragraph 85. ment presented for enforcement. However, there may be addi- 10. Section 4 of the Civil Jurisdiction and Judgments (Hague tional procedural hurdles, and therefore time and cost involved. Convention on Choice of Court Agreements 2005) (EU The UK Government is also considering becoming a Exit) Regulations 2018. contracting party to other relevant conventions, such as the 11. European Commission Directorate-General Justice And 2019 Singapore Mediation Convention, and the 2019 Hague Consumers: Notice to Stakeholders Withdrawal Of The Convention on the Recognition and Enforcement of Judgments, United Kingdom And EU Rules In The Field Of Civil but none will come into effect in the UK in the short term. Justice And Private International Law, 21 November 2017. It should be noted that arbitration, including the ready enforce- 12. Convention between His Majesty in respect of the United ability of arbitral awards under the New York Convention, is Kingdom and the President of the French Republic unaffected by Brexit. providing for the Reciprocal Enforcement of Judgments in Civil and Commercial Matters with Protocol, 18 January Some Practical Conclusions 1934. 1. It is advisable that commercial parties ensure, going 13. Convention between His Majesty in respect of the United forward, that choice of court clauses make the choice Kingdom and His Majesty the King of Belgians providing exclusive and not asymmetric, so that such agreements for the Reciprocal Enforcement of Judgments in Civil and should be enforceable through the Hague Convention. Commercial Matters (with Protocol), 2 May 1934. 2. In light of ongoing uncertainty about the UK’s uninter- 14. Convention between Her Majesty in respect of the United rupted accession to the Hague Convention between 1 Kingdom of Great Britain and Northern Ireland and the October 2015 and 1 January 2021, commercial parties President of the Federal Republic of Germany for the who wish to continue to rely on existing exclusive jurisdic- Reciprocal Recognition and Enforcement of Judgements tion clauses should consider “re-papering” or “re-stating” in Civil and Commercial Matters (with Protocol of those clauses. Signature), 14 July 1960. 3. Parties concerned about enforcement in the EU27 should 15. Convention between Her Majesty in respect of the United take local law advice, or give consideration to whether arbi- Kingdom of Great Britain and Northern Ireland and tration would be a suitable method for resolving disputes. the Federal President of the Republic of Austria for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, 14 July 1961. Endnotes 16. Convention between the United Kingdom of Great Britain 1. Regulation (EU) No 1215/2012 of the European and Northern Ireland and the Republic of Italy for the Parliament and of the Council of 12 December 2012 on Reciprocal Recognition and Enforcement of Judgements jurisdiction and the recognition and enforcement of judg- in Civil and Commercial Matters, 7 February 1964. ments in civil and commercial matters. 17. Convention between Her Majesty the Queen in respect 2. Council Regulation (EC) No 44/2001 on jurisdiction and of the United Kingdom of Great Britain and Northern the recognition and enforcement of judgments in civil and Ireland and Her Majesty the Queen of the Netherlands commercial matters. providing for the Reciprocal Recognition and Enforcement 3. Article 66(2) the Brussels Recast Regulation. of Judgments in Civil Matters, 17 November 1967. 4. 1968 Brussels Convention on jurisdiction and the enforce- 18. Agreement on the Continued Application and Amendment ment of judgments in civil and commercial matters. of the Convention between the Government of the United 5. The “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Great Britain and Northern Ireland from Government of the Kingdom of Norway providing for the the European Union and the European Atomic Energy Reciprocal Recognition and Enforcement of Judgments in Community”, signed on 24 January 2020, set the terms of Civil Matters signed at London on 12 June 1961. the withdrawal of the UK from the EU and Euratom. The UK’s withdrawal from the EU took effect at 11 pm GMT on 31 January 2020.

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Louise Freeman represents parties in complex commercial disputes, and co-chairs the firm’s Commercial Litigation and European Dispute Resolution Practice Groups. Described by The Legal 500 as “one of London’s most effective partners” and by Chambers as “a class act”, Ms. Freeman helps clients to navigate challenging situations in a range of industries, including life sciences, technology and financial markets. Most of her cases involve multiple parties and jurisdictions, where her strategic, dynamic advice is invaluable. Ms. Freeman also represents parties in significant competition litigation proceedings, including a number of the leading cases in England. Ms. Freeman is a key member of Covington’s market-leading Privacy and Data Security Litigation team, which advises a broad range of international clients on data privacy-related litigation. She has recently represented a client in an intervention in an appeal in the leading UK case making new law in relation to both data privacy claims and class actions.

Covington & Burling LLP Tel: +44 20 7067 2000 265 Strand Email: [email protected] London WC2R 1BH URL: www.cov.com United Kingdom

Shivani Sanghi is a dual-qualified lawyer: a Solicitor-Advocate in England and Wales; and an Advocate in India. Drawing on her extensive experience in complex, high-value cross-border litigation and international arbitration, Ms. Sanghi has advised clients across multiple jurisdictions including the UK, Russia, India, British Virgin Islands, Cayman Islands, Luxembourg, Cyprus, and Bulgaria. Ms. Sanghi has represented clients in a wide variety of sectors, including banking, telecoms, private equity, and software technology, and has represented clients in many high-profile cases before the English courts, including the Court of Appeal and the UK Supreme Court. Ms. Sanghi has been recognised by The Legal 500 UK 2019, as “senior associate to note” and “excellent future star” in the commercial litigation category. She has also been named in The Lawyer for involvement in the Russian Facebook/VK.com dispute and the VTB v Nutritek case. Ms. Sanghi previously practised as an Advocate in Delhi.

Covington & Burling LLP Tel: +44 20 7067 2000 265 Strand Email: [email protected] London WC2R 1BH URL: www.cov.com United Kingdom

Covington & Burling LLP (Covington) is a pre-eminent international law firm with more than 1,300 attorneys and advisors and offices in Beijing, Brussels, Dubai, Frankfurt, Johannesburg, London, Los Angeles, New York, Palo Alto, San Francisco, Seoul, Shanghai, and Washington. In an increasingly regulated world, we have an exceptional ability to navigate clients through their most complex business problems, deals, and disputes. www.cov.com

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European Union

Sébastien Champagne

Sébastien Champagne & Vanessa Foncke Vanessa Foncke

12 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 ■ the status or legal capacity of natural Legal proceedings instituted on or All EU Member States. the recognition and persons, rights in property arising out of after 10 January 2015. enforcement of judg- matrimonial or analogous relationships, ments in civil and bankruptcy and analogous proceedings, commercial 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 Council Regulation See Recast Brussels I above, except that (EC) No. 44/2001 of liability of the State for acts and omis- 22 December 2000 ■ All EU Member States. Legal proceedings instituted sions in the exercise of State authority and on jurisdiction and ■ Switzerland, Norway and before 10 January 2015 and after maintenance obligations from a family the recognition and Iceland. 1 March 2002 (and after 1 July relationship, parentage, marriage or enforcement of judg- 2007 for Denmark). affinity are not explicitly excluded subject ments in civil and matters. commercial matters. (Revised) Lugano Convention Recognition and enforcement proceedings of judgments Convention on juris- rendered in: diction and the ■ Denmark or Norway in the EU recognition and ■ All EU Member States. and vice versa instituted on or after enforcement of judg- ■ Switzerland, Norway and 1 January 2010; ments in civil and Iceland. ■ Switzerland in the EU and vice commercial matters ■ The UK applied to join the See Brussels I above. versa instituted as of 1 January of 30 October 2007 Lugano Convention on 2011; and 2007 (replacing 8 April 2020. ■ Iceland in the EU and vice versa the preceding instituted as of 1 May 2011. Convention of 16 For cases arising before those September 1988). dates of entry into force, the Lugano Convention of 1988 continues to apply.

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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 court or tribunal Legal proceedings instituted on or Regulation (EC) No. that do not exceed the amount of €2,000 (and after 1 January 2009. 861/2007 of 11 July All EU Member States, €5,000 as of 14 July 2017), excluding interest, The amendments by Regulation 2007 establishing except Denmark. expenses and disbursements. (EU) 2015/2421 of 16 December a European Small Excluded subject matters: 2015 entered into force on 14 July Claims Procedure. ■ see Recast Brussels I above; and 2017. ■ 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. Excluded subject matters: Regulation (EC) ■ revenue, customs or administrative matters, Legal proceedings instituted on or No. 1896/2006 of liability of the State for acts and omissions in after 12 December 2008. 12 December 2006 All EU Member States, the exercise of State authority; The amendments by Regulation creating a European except Denmark. ■ rights in property arising out of matri- (EU) 2015/2421 of 16 December order for payment monial relationships, wills and succession, 2015 entered into force on 14 July procedure. bankruptcy and analogous proceedings, 2017. social security; and ■ 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) c) never appeared or been represented at No. 805/2004 court with respect to the disputed claim of 21 April 2004 Judgments, court settlements and All EU Member States, even though having initially objected to it, creating a European authentic instruments established except Denmark. if such conduct amounts to a tacit admis- Enforcement Order on or after 21 October 2005. sion of the claims or the facts alleged by the for uncontested creditor under the laws of the Member State claims. 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.

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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. Exclusive choice of court agree- Excluded subject matters: ments concluded after its entry ■ exclusive choice of court agreements into force for the State of the with a consumer or relating to employ- chosen court, but not if proceed- ■ All EU Member States. ment contracts; ings were instituted before its ■ Mexico. ■ the status and legal capacity of natural entry into force for the State of ■ Montenegro. persons, maintenance obligations, Convention of the court seized. The Convention ■ Singapore. various other family law matters, wills 30 June 2005 on entered into force on: ■ The UK. and succession, insolvency and analo- Choice of Court ■ 1 October 2015 for the EU ■ China, Ukraine, and gous matters, the carriage of passengers Agreements. Member States (except Denmark) the USA have signed, but and goods, several maritime matters, anti- and Mexico; not yet ratified, the Hague trust matters, liability for nuclear damage, ■ 1 October 2016 for Singapore; Convention. claims for personal injury, tort or delict ■ 1 August 2018 for Montenegro; claims for tangible property damage not ■ 1 September 2018 for Denmark; arising from a contractual relationship, and rights in rem in and tenancies of immov- ■ 1 January 2021 for the UK. able property, validity, nullity or dissolu- tion 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 1958 on the The recognition and enforcement of arbi- Recognition and All countries signatory to the tral awards rendered in another State than Entry into force on 7 June 1959. Enforcement of Convention. the one where recognition or enforcement Foreign Arbitral is sought. Awards.

22 EU Recognition and Enforcement Article 19 EOP Regulation). The Hague Convention still requires creditors to formally apply for recognition of judgments within its Instruments field of application (see Chapter 3 Hague Convention). The legal effect of the (de plano) recognition of a judgment is 2.1 What requirements (in form and substance) must that, further to the (de plano) recognition, the foreign judgment the judgment satisfy in order to be recognised and will obtain the same binding force as any judgment recognised enforceable under the respective instrument? in the country of origin. The exact nature and scope of such binding force will thus be determined by the law of the country The judgment must fall within the scope of application of the of origin where the judgment was rendered. instrument at stake as set out in section 1 above. As concerns the enforcement of foreign judgments, Brussels I Under no circumstances may a foreign judgment of another and the Lugano Convention require that an exequatur be obtained Member State be reviewed as to its substance (see Article 52 Recast prior to being able to actually enforce the judgment at stake (also Brussels I, Articles 36 and 45(2) Brussels I and Lugano Convention, referred to as “registering a judgment” or obtaining a “decla- Article 22(2) ESC Regulation, Article 21(2) EEO Regulation, ration of enforceability”) (Articles 38 Brussels I and Lugano Article 22(3) EOP Regulation and Article 8(2) Hague Convention). Convention). Once the exequatur procedure has been successfully completed, the judgment will be enforced in the Member State in which enforcement is sought in the same way as any 2.2 With reference to each of the specific instruments set out in section 1, does it specify a difference judgment rendered in that respective Member State. The actual between recognition and enforcement? If so, what is the enforcement of the judgment remains a pure domestic law matter. difference between the legal effect of recognition and Recast Brussels I has abandoned the need to obtain an exequatur enforcement? prior to the actual enforcement of a judgment. Therefore, a judgment rendered in a Member State which is enforceable in that Pursuant to all but one of the European instruments set out in respective Member State is enforceable in any other Member State section 1, judgments rendered in an EU Member State are recog- without the need for an exequatur (Article 39 Recast Brussels I). nised in other Member States without any need for separate recog- Pursuant to Article 20(1) ESC Regulation, Article 5 EEO nition proceedings (so-called de plano recognition; see Article 36 Regulation and Article 19 EOP Regulation, judgments are Recast Brussels I, Articles 33(1) Brussels I and Lugano Convention, enforceable as such, without the need for a prior exequatur (as is Article 20(1) ESC Regulation, Article 5 EEO Regulation and the case for judgments under Recast Brussels I).

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By declaring a judgment enforceable, a national court grants be challenged under this procedure (Article 5). Finally, the the same value to that foreign judgment as a domestic enforce- enforcement procedure as such is also governed by the law of able judgment. Consequently, upon obtaining an exequatur, the the Member State in question (Article 20(1)). creditor can subsequently enforce the judgment, for instance, d) ESC Regulation by using the coercive measures that are available in the Member The procedure under the ESC Regulation is very similar State in which enforcement is sought. to the procedure pursuant to the EEO Regulation. An exequatur is not needed in order to obtain enforcement and it is not possible to challenge the recognition of the judgment 2.3 The procedure for recognising and enforcing a (Article 20(1)). The party seeking enforcement shall request foreign judgment the court or tribunal to issue a certificate – at no extra cost – by using a standard Form D, as attached to Annex IV of a) Recast Brussels I the ESC Regulation (Article 20(2)). Upon receiving this certif- As explained in question 2.2 above, Recast Brussels I icate, the party seeking enforcement shall provide said certif- continues the tradition of de plano recognition of foreign icate together with a copy of the judgment to the competent judgments and, in addition, no longer requires an exequatur. enforcement authorities of the Member State in which enforce- The actual enforcement is not governed by Recast Brussels ment is sought, and if necessary, also a duly certified transla- I, but by the law of the Member State where execution of the tion of the certificate into the language of the Member State in judgment is sought. Since an exequatur no longer needs to be which enforcement is sought (Article 21(2)). Once more, the obtained, the creditor can instruct directly the local compe- enforcement procedure as such is governed by the law of the tent authority (e.g., a bailiff) responsible for proceeding with Member State in which enforcement is sought (Article 21(1)). the execution as such. The applicant has to provide two e) EOP Regulation documents to the competent authority, namely (i) a copy Under the EOP Regulation, a European Order for Payment of the judgment sought to be enforced, and (ii) a certifi- (“EOP”) which has become enforceable in the Member cate delivered by the court of origin (i.e., the court where the State in which the judgment was rendered shall be recog- judgment was originally rendered) confirming the enforce- nised and enforced in other Member States without the need able measures (Articles 37(1) and 42(1)). If deemed neces- for an exequatur and without any possibility of challenging sary, a translation of the aforementioned certificate and of its recognition (Article 19). The party seeking enforcement the judgment sought to be enforced by a qualified translator needs to send a copy of the EOP, and if necessary a duly may also be required (Articles 37(2), 42(3), 43(2) and 57). certified translation of the EOP into the language of the b) Brussels I and the Lugano Convention Member State in which enforcement is sought, to the rele- Pursuant to Brussels I and the Lugano Convention, the vant enforcement authorities of that Member State (Article party seeking enforcement of a foreign judgment must apply 21(2)). Again, enforcement takes place in accordance with for an exequatur with the court or competent authority in the national rules and procedures of the Member State the Member State of enforcement listed in Annexes II to where the EOP is being enforced (Article 21(1)). Brussels I and the Lugano Convention. The party applying f) Hague Convention for an exequatur must produce (i) a copy of the judgment Finally, under the Hague Convention, the recognition and (Articles 53(1) Brussels I and Lugano Convention), and (ii) enforcement procedure is governed by the law of the State of a certificate delivered by the court of origin (i.e., the court enforcement unless the Hague Convention provides other- where the judgment was originally rendered) confirming the wise. The documents to be produced in the framework of enforceable measures (Articles 53(2) Brussels I and Lugano these procedures are more elaborate than the documents Convention). If deemed necessary, a certified translation of required in the EU Regulations described above. More specifically, the party seeking recognition or enforcement the aforementioned documents will have to be produced as must produce the following set of documents (Article 13): well (Articles 55(2) Brussels I and Lugano Convention). The i) a complete and certified copy of the judgment; actual procedure of applying for an exequatur is governed by ii) either the exclusive choice of court agreement, a the law of the Member State in which enforcement is sought certified copy thereof, or any other evidence of its (Articles 40(1) Brussels I and Lugano Convention). existence; c) EEO Regulation iii) if the judgment was given by default, the original or a When seeking to obtain a European Enforcement Order certified copy of a document establishing that the docu- (“ ”) under the EEO Regulation, an application has EEO ment which instituted the proceedings or an equivalent to be filed with the court that rendered the judgment. The document was notified to the defaulting party; court will consider first whether the judgment is eligible iv) any documents necessary to establish that the judg- pursuant to the conditions set forth in Article 6 of the EEO ment has effect or, where applicable, is enforceable in Regulation, which mainly requires that the judgment is the State of origin; enforceable in the Member State of origin, the concerned v) in case of a judicial settlement: a certificate of a court claim is uncontested (as defined in section 1 above) and the of the State of origin that the judicial settlement, or judgment was rendered in the Member State of the debtor’s a part of it, is enforceable in the same manner as a domicile. If so, the court will provide the creditor with (i) judgment in the State of origin; a sealed copy of the judgment, and (ii) an EEO certificate. vi) any other documents that the court deems necessary Upon receiving those two documents, the creditor can send if certain conditions are not met; a copy of those documents, and, if necessary, a duly certi- vii) an application for recognition or enforcement may fied translation of the certificate into the language of the be accompanied by a document, issued by a court Member State of enforcement to the competent enforce- (including an officer of the court) of the State of origin, ment authorities of the Member State in which enforce- in the form recommended and published by the Hague ment is sought (Article 20(2)). As referenced in section 1, an Conference on Private International Law; and exequatur is not required under the EEO Regulation in order viii) if necessary, a certified translation of the documents to obtain enforcement. The recognition of the EEO cannot listed above.

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2.4 Grounds on which recognition/enforcement of a c) the document which instituted the proceedings or an equiva- judgment can be challenged and when lent document, including the essential elements of the claim: i) was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his Pursuant to Articles 45–46 Recast Brussels I, recognition and defence, unless the defendant entered an appearance enforcement shall be refused, upon the opposing party’s appli- and presented his case without contesting notification cation (so not ex officio), if: in the court of origin, provided that the law of the State a) the recognition or enforcement is manifestly contrary to of origin permitted notification to be contested; or public policy (understood as “international” public policy); ii) was notified to the defendant in the State of enforcement b) the defendant was not served with the document that insti- in a manner that is incompatible with fundamental prin- tuted the proceedings in sufficient time and in such a way ciples of the State of enforcement concerning service of as to enable him or her to arrange for his or her defence; 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 e) recognition or enforcement would be manifestly incom- given in another EU or non-EU Member State involving patible with the public policy of the State of enforcement; the same cause of action and the same parties; or f) the judgment is inconsistent with a judgment given in e) the judgment conflicts with specific provisions of Recast the State of enforcement in a dispute between the same Brussels I on jurisdiction in matters relating to insurance, parties; or consumer contracts or individual employment contracts or g) the judgment is inconsistent with an earlier judgment given on exclusive jurisdiction (Articles 10–24). in another State between the same parties on the same Under Brussels I and the Lugano Convention (Articles 34–35), cause of action, provided that the earlier judgment fulfils recognition shall be refused based on the above-referenced the conditions necessary for its recognition in the State of grounds (except for ground (e) as far as employment contracts enforcement. are concerned). Pursuant to Article 43(5) Brussels I, an appeal against the exequatur has to be lodged within one month of service thereof. 2.5 The impact on the recognition and enforcement The time period will be two months if the party against whom of a foreign judgment when in the State of enforcement enforcement is sought is domiciled in another Member State there is: (a) a conflicting local judgment between the than that in which the exequatur was given (see also Article parties relating to the same issue; (b) an appeal pending between the parties; or (c) a conflicting local law 43(5) Lugano Convention). This appeal procedure has disap- peared under Recast Brussels I because, as mentioned, the exequatur procedure has been abandoned as a requirement for a) See question 2.4 above, where a conflicting local judgment enforcement of foreign judgments. can be a ground for refusal of recognition or enforcement. An EOP and judgments rendered in a Member State in the ESC b) If an appeal is pending in the courts of the jurisdiction of Procedure or certified as an EOO are recognised and enforced origin, under Brussels I and the Lugano Convention, courts in the other Member States without exequatur (Article 20(1) of the Member State in which recognition of a judgment is ESC Regulation, Article 5 EEO Regulation and Article 19 EOP sought to have the discretion to grant a stay pending resolu- Regulation). Furthermore, under the ESC Regulation, the EEO tion of the appeal (Articles 37 and 46). The same applies to Regulation and the EOP Regulation, the existence of an irrecon- Recast Brussels I (Articles 38 and 51), as well as to the EEO cilable judgment in the same cause of action and between the same Regulation (Article 23 (c)), the ESC Regulation (Article parties provides a ground for challenging enforcement as long as 23(c)) and the EOP Regulation (Article 23 (c)). the irreconcilability was not and could not be raised as an objec- c) National courts can only refuse recognition and enforce- tion during the proceedings where the judgment was given (Article ment on the grounds referred to above in question 2.4. 22(1) ESC Regulation, Article 21(1) EEO Regulation and Article Hence, conflicting local laws can only be a ground for 22(1) EOP Regulation). Under the EOP Regulation, enforcement refusing recognition or enforcement of foreign judgments shall also be refused if and to the extent that the defendant has paid if, for example, local law violates public policy. In that the claimant the amount awarded in the EOP (Article 22(2) EOP respect the concept of ‘public policy’ is not to be consid- Regulation). Furthermore, an opposition can be lodged against the ered from a purely domestic point of view, but is more EOP in accordance with Articles 16–17 of the EOP Regulation. limited and to be interpreted as international public policy. Similarly, an application for rectification or withdrawal can be filed under Article 10 of the EEO Regulation and an application 2.6 The relevant limitation period to recognise and for review can be filed under Article 19 of the EEO Regulation enforce a foreign judgment 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 ques- Whether an appeal is available against a judgment rendered in the tion of substantive domestic law. The European instruments ESC Procedure will depend on the procedural law of each Member referred to in section 1 do not provide for limitation periods State (Article 17 ESC Regulation), but the judgment is enforceable for the recognition and enforcement of foreign judgments. notwithstanding any appeal (Article 15 ESC Regulation). Judgments must generally still be enforceable in the State in which Finally, under Article 9 of the Hague Convention, recognition they were given in order to be enforced in EU Member States or enforcement may be refused if: (Article 39 Recast Brussels I, Articles 38(1) Brussels I and Lugano a) the choice of court agreement was null and void under Convention, Article 6(1)(a) EEO Regulation, Article 19 EOP the law of the State of the chosen court, unless that court Regulation, Article 20(1) ESC Regulation and Article 8(3) Hague determined that the agreement was valid; Convention). In other words, a judgment can only be enforced to b) a party did not have the proper capacity to conclude the the extent that the statute of limitation has not yet expired. agreement under the law of the State of enforcement;

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32 Conclusion The Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Noteworthy recent (in the last 12 months) legal Ireland, of the other part (the “EU–UK Trade and Cooperation developments in the EU relevant to the recognition and Agreement”), signed on 30 December 2020 and applied provi- enforcement of foreign judgments sionally since 1 January 2021, does not make any longer-term provision in these areas. The main EU instruments on the recog- For the duration of the Brexit transition period, the issue on nition and enforcement of judgments therefore no longer apply the recognition and enforcement of judgments between the UK to civil and commercial cases commenced in the UK on or after and the EU was governed by the Agreement on the withdrawal 1 January 2021. The UK did take steps to limit the impact by of the United Kingdom of Great Britain and Northern Ireland acceding to the Hague Convention in its own right, giving it legal from the European Union and the European Atomic Energy effect in domestic law. The UK also applied to rejoin the 2007 Community of 17 October 2019 which entered into force on 1 Lugano Convention as an independent contracting state. At the February 2020 (the “Withdrawal Agreement”). In essence, time of writing, this application has yet to be agreed by all the the Withdrawal Agreement provided that EU law on interna- current parties to the Convention. tional jurisdiction in cross-border civil disputes continued to apply to legal proceedings instituted before the end of the Disclaimer transition period, and that relevant EU law on recognition and enforcement of judgments continued to apply in regard to judg- The views and opinions set forth herein are the personal views or opinions of ments in these proceedings. the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.

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Sébastien Champagne is a partner in the Global Dispute practice of Jones Day’s Brussels Office. He focuses on domestic and cross-border litigation, representing clients in complex commercial disputes, such as contractual, regulatory and competition disputes. He represents major national and international corporations in pretrial negotiations and in litigation before judicial and administrative courts. His clients are active in various sectors, including the telecom, industrial equipment, transportation, and IT industries. He is also experienced in the drafting and negotiation of commercial and telecom-related agreements. Sébastien is regularly active in arbitration as counsel or arbitrator. He is also a deputy judge at the French-speaking Commercial Court of Brussels. Sébastien is a graduate of the Catholic University of Louvain, Belgium (J.D. 1993) and New York University (M.C.J. 1994). He is a member of the French-speaking section of the Brussels Bar. He is annually endorsed for dispute resolution in Chambers and The Legal 500.

Regentschapsstraat 4 Tel: +32 2 645 14 11 1000 Brussels Email: [email protected] Belgium

Vanessa Foncke is a partner in the Global Dispute practice of Jones Day’s Brussels Office. She practises in all aspects of dispute resolution and contract negotiations. Her experience covers the representation of Belgian and foreign clients in a broad range of contractual and commercial disputes in all stages of court and administrative proceedings. Vanessa also has extensive experience in domestic and international commercial arbitration both as counsel and arbitrator. Vanessa is a member of the board of administration and of the executive committee of CEPANI, the Belgian institution for arbitration and mediation. She is ranked in Chambers Global, Chambers Europe, The Legal 500 EMEA and Who’s Who Legal: Arbitration. Vanessa is a graduate of Ghent University (J.D. magna cum laude) and Columbia University (LL.M. James Kent Scholar; Fulbright Scholar). She is a member of the Flemish section of the Brussels Bar and serves as Secretary of the Bar Council.

Regentschapsstraat 4 Tel: +32 2 645 14 11 1000 Brussels Email: [email protected] Belgium

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 12 Chapter 3

International Enforcement Strategy – An Overview

Osborne Clarke LLP Andrew Bartlett

Introduction choice of jurisdiction, the choice of cause of action and methods of service can all impact on the issue of enforcement. International enforcement is a highly complicated area of practice which involves the interplay of different legal systems and national (i)2 Information Gathering laws amidst a range of bilateral and multilateral international conventions and treaties. Although it involves numerous techni- Gathering information about a debtor’s assets can be crucial to calities, it is more of an art than a science because of the numerous successful enforcement. However, the most successful means of uncertainties that exist. There are many books which focus on gathering information will depend on the circumstances of any the applicable principles under different national laws, but often particular case. Information gathering will involve the review of what is lacking is an overview of how the overall process works. publicly accessible resources and the compulsion of persons to A clear strategy is essential but strategy can rarely be fixed at the provide information about assets pursuant to orders of the court. outset and it will usually be iterative, adapting to developments that Gathering information from publicly accessible sources is a take place in the proceedings. Strategy must take into account the process which may be undertaken by lawyers but may also be intricacies of the applicable legal principles whilst at the same time undertaken by specialist investigation practices. Sometimes the taking into account the practical and commercial factors which investigations will require manual checks of public registers in are fundamental to any enforcement strategy. Experience is there- remote jurisdictions or the surveillance of properties, but much fore essential. can also be done by searching the internet with the assistance of The three main elements to an effective enforcement strategy sophisticated software that enables a broad range of informa- will tend to be: (i) information gathering; (ii) preservation of tion to be gathered quickly and efficiently. Increasingly, indi- assets; and (iii) execution/enforcement against assets. In some vidual debtors and their families have a significant footprint on cases, further steps will have to be taken to unwind transfers/ social media which can assist in identifying assets and tracking disposals of assets by the debtor and/or to enforce against assets extravagant lifestyles. However, in many cases, it will be essential to obtain orders held in the names of connected persons. The importance of from a court compelling the provision of information by debtors each of these stages will depend on the facts of the case. In many and/or third parties who have information about the assets of situations, if success is achieved in the information gathering the debtor. Information can be obtained both at a pre-judgment and preservation of assets stages, formal execution/enforce- stage and at a post-judgment stage, although unsurprisingly, it is ment against assets will not be necessary. If a debtor gets to a generally easier to obtain orders requiring the provision of infor- point where successful enforcement appears inevitable, it will mation about assets at a post-judgment stage. very often pay up. However, in more difficult cases where assets There is no single answer as to which courts one should go to are no longer owned by the debtor, proceedings may end up in order to obtain information about the assets of the debtor. In involving a web of third parties who are said to hold assets bene- general, in common law systems, the court that is determining ficially owned by the debtor or who are said to have received the the substance of the dispute will consider itself to have personal debtor’s assets other than on commercial terms. jurisdiction over the debtor such that it can compel the debtor A debtor seeking to avoid enforcement will typically rely on to provide information about its worldwide assets both before a combination of technical arguments against recognition of a and after judgment. foreign judgment and the use and abuse of procedural mecha- In addition, in many legal systems (and under the EU jurisdic- nisms to delay matters. Some debtors will go further by dissi- tion and enforcement regime), provisional and protective meas- pating their assets and asserting that supposedly innocent third ures can be granted by the courts of a state other than the state parties have prior rights over the debtor’s property. that is determining the substance of the dispute, where there is a When considering enforcement strategy, the question of sufficient connection between the protective measure sought and where particular steps should be taken will be an important and that other state. On this basis, it may well be possible to obtain potentially complex question, and there may be several options. an order requiring the provision of information about assets in The most obvious option is not always the best option. the courts of the place of the assets or the debtor’s domicile, as This overview chapter addresses the issues of: (i) information well as in the court determining the substance of the dispute. gathering; (ii) preservation of assets; (iii) execution/enforcement In common law systems, in a post-judgment context where against assets; as well as the two further important considerations a judgment has not been satisfied, obtaining orders requiring of (iv) sovereign immunity; and (v) limitation periods. However, the debtor to disclose all its assets is a relatively straightforward an effective enforcement strategy should really be planned from process. Debtors can be required to attend court for examina- before the commencement of the original proceedings since tion about their assets and/or they can be required to provide a decisions such as those relating to the choice of defendants, the

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sworn affidavit detailing their assets. Failures to comply with The preservation of assets can either take the form of a “provi- such orders, and the concealment of assets, is likely to consti- sional attachment” in respect of the relevant property or an “in tute a contempt of court punishable by imprisonment or a fine. personam” order which prohibits persons subject to the jurisdic- In common law systems, Norwich Pharmacal orders can often tion of the relevant court from disposing of the asset (referred be used to obtain information from third parties about a debt- to as “freezing orders”). In general terms, the former approach or’s assets. There are a number of subtleties about which courts of provisional attachment orders is used in civil law jurisdictions can compel third parties such as banks to provide informa- and the latter approach of freezing orders is used in common tion and concerns about breaching foreign laws are an impor- law jurisdictions. tant consideration. In general, when seeking information from The different nature of these orders impacts on the issue of banks, one has to go to the courts of the country where the bank which courts will consider themselves to have jurisdiction to account is held, but in other cases, the courts of the domicile of grant such orders. the third party will be the normal choice. ■ Because the provisional attachment order operates over In very general terms, obtaining detailed information about the specific property to which it relates, such orders will assets in civil proceedings tends to be more difficult in civil normally only be granted by the courts of the place of the law systems. However, the counterbalance to this is that often relevant assets. This means that the courts of civil law juris- information can be obtained through criminal proceedings. dictions will not grant provisional attachment orders over In the international context, the discovery procedures in the worldwide assets. United States under section 1782 of the United States Code are ■ In contrast, the personal nature of the freezing order of particular note. Whilst there are conflicting decisions as means that common law courts will grant so-called to the precise scope of documents that can be obtained under “worldwide” freezing orders. One must realise that the this procedure, in general terms, it enables a claimant to obtain freezing order does not give the claimant any security information from third parties in the US in a very wide range of interest in the relevant property and/or any priority over circumstances where the provision of information is in support other creditors. What it does is order the named individ- of foreign proceedings. Interestingly, in some cases banks oper- uals (who are subject to the jurisdiction of the court) not ating in the US have been required to provide information about to dispose of the relevant assets, wherever they may be accounts outside the US under this procedure. located. If a party to litigation breaches a freezing order or It is worth noting that the sort of information that can be other injunction, it will be in contempt of court and may be obtained can include information about the operation of an asset imprisoned or fined. Furthermore, non-parties to the liti- that produces a revenue stream for the debtor and not only straight- gation who are subject to the jurisdiction of the court and forward information about the ownership of bank accounts, etc. who are notified of the order will also be in contempt of As well as obtaining orders specifically requiring the provision court if they assist in any breach of the injunction. of information about assets, another route to obtaining infor- Both forms of orders have their strengths and limitations, and mation can be through the appointment of a court-appointed deciding on what is the most appropriate means of preserving receiver. In most common law systems, a receiver can be assets will depend on a careful assessment of the circumstances appointed to manage and collect in certain specific assets or of the case combined with a pragmatic approach as to what can be classes of assets. The powers that are granted to the receiver achieved in different jurisdictions within the specified time period. can include the power to require the provision of information. In a post-judgment context, in some civil law jurisdictions, It has been clear since a landmark judgment in 2008 (Masri v obtaining a provisional attachment over bank accounts, for Consolidated Contractors (No.2) [2008] EWCA Civ 303) that world- example, can be a very straightforward process which is less wide receivership orders can be granted by the English court costly and complex than seeking a freezing injunction in a and other common law courts have followed suit. common law jurisdiction. However, the provisional attachment is a less flexible remedy in a number of ways. (ii)2 Preservation of Assets Over the last 10 years, receivership orders have become a The preservation of assets is often the most important step in the much more widely used tool in common law jurisdictions for overall enforcement process. If assets can be effectively secured the preservation of assets. This follows the grant of the first through the application of interim measures such as freezing worldwide receivership orders by the English court in 2008, injunctions, often the formal process of execution against the in the case of Masri v Consolidated Contractors International (No. assets will not become necessary. 2) [2008] EWCA Civ 303. This was soon followed by similar However, that is by no means always the case. In particular: decisions in various other common law jurisdictions. In this ■ Assets may be frozen where they are held by a third party. context, a “receivership order” (or “order for the appointment In this situation, the court will not have determined that of a receiver”) does not derive from insolvency laws. It is the the assets can definitely be enforced against by the cred- process whereby the court appoints an individual to act as a itor; the court will most likely only have determined that receiver to stand in the shoes of the respondent in respect of there is a good argument or a realistic prospect of the cred- the management of specified assets. The receiver is an officer itor being able to establish that it can enforce against the of the court and owes duties to the court, but plainly their role is assets. In this context, the debtor may well continue to to preserve the relevant assets – a task which is in the creditor’s dispute that it has the requisite interests in or rights over interests. As for freezing orders, the receivership order does not the assets held by the third party. grant any proprietary right or interest over the relevant assets. ■ In other situations, it may be asserted that the assets frozen Its effectiveness relies on either the respondent or relevant third by the creditor are the subject of third-party security inter- parties complying with the order and recognising the receiver. ests which take precedence over the creditor’s interests. Post-judgment receivership orders often fill a useful purpose in Whilst in some cases, there may be genuine third-party assisting enforcement where legal execution against assets would security interests held by independent third parties, in other be impossible because of jurisdictional issues or a lack of certainty cases, the security interests may be held by parties which the or specificity as to the whereabouts of assets. For example, receiv- creditor believes are connected to the debtor and there may ership orders might be used to collect in a future revenue stream be concerns that they are a device to evade enforcement. which will become payable to the judgment debtor over time.

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As well as being used to enforce contractual rights, receivership (iii)2 Execution/Enforcement Against Assets orders may also be used to exercise powers under a trust or rights as a shareholder. Naturally, the rights exercised by the receiver The process of enforcement of a judgment in another jurisdic- can never be greater than the rights of the debtor itself, and so due tion really consists of two separate stages. First, is the process of regard must be paid to the interests of third-party security inter- obtaining an order of the foreign court which either recognises the ests. Of course, determining what is a bona fide third-party secu- foreign judgment as being enforceable or itself replicates the provi- rity interest and what is not can be difficult. sions of the foreign order (the “recognition phase”). Second, is the process of enforcing the order obtained in the recognition phase against assets in the relevant jurisdiction (the “enforcement phase”). Variations between jurisdictions in the requirements for In most cases, only judgments for the payment of a speci- the grant interim relief fied sum of money can be enforced in a foreign jurisdiction. However, the European regime does allow for the recognition The requirements for the grant of provisional attachments and/ of all types of orders and judgments including orders for the or freezing orders vary between jurisdictions. grant of interim relief. ■ A claimant will have to show that it has a claim against the defendant, otherwise there could be no justification for The recognition phase interim relief. However, whether or not the claim has to have already been commenced, and/or whether the court will consider the strength of the claim in any way, varies The approach to recognition depends on the legal system of the between legal systems. jurisdiction concerned and whether there are any applicable trea- ■ In many jurisdictions, assets will only be frozen or subject ties or conventions governing the process of recognition. One to a provisional attachment if the claimant can show that important point to note is that the fact that there may not be there is a risk that the defendant’s assets will be dissipated any applicable treaty or convention does not mean that recogni- or that the defendant will evade payment of any judgment. tion of a judgment is not possible. Most national laws will have However, this is not always the case; and in some jurisdic- a system for the recognition and enforcement of foreign judg- tions, there is no such requirement. ments, although the ease of enforcement can vary very signif- ■ Requirements for the applicant to provide undertakings or icantly. Equally, the applicability of an international treaty or security in respect of the potential harm that might unfairly convention does not itself necessarily mean that enforcement be caused to the defendant by the order vary significantly will be straightforward and speedy. across jurisdictions. However, these requirements can be In general terms, the main approaches to enforcement can be important practical points when applying for relief. categorised as follows: ■ The duty of full and frank disclosure that arises in common ■ Enforcement of judgments of EU and EEA Member law systems (when an application is made without notice) States in other EU or EEA Member States. is another important strategic issue. In general terms, this ■ The Recast Brussels Regulation provides a system for duty does not apply in civil law systems. the automatic enforcement of judgments between EU Member States. ■ The Lugano Convention 2007 provides a relatively Granting relief in support of foreign proceedings straightforward system for the enforcement of judgments between EU Member States and Iceland, In most legal systems, the courts will grant some form of provi- Switzerland and Norway. sional/interim relief in support of claims that are ongoing ■ Enforcement of judgments where a bilateral or interna- before those courts. However, should they grant interim relief tional treaty of convention applies. in support of foreign proceedings? As trade and litigation have ■ There are a number of applicable bilateral treaties become more international in their nature, many legal systems between different countries and checks should always have adapted to meet this challenge. be made in respect of the relevant countries. Within the European jurisdictional regime, the Recast ■ International conventions include the Riyadh Brussels Regulation (Regulation (EU) 1215/2012) specifi- Convention and the GCC Convention involving a cally provides separate rules as to which courts have jurisdic- range of Arab states, as well as the 2005 Hague Choice tion to grant provisional or protective measures as against the of Courts Convention. courts which have jurisdiction to determine the substance of the ■ There are now two Hague conventions relating to the dispute. These rules contemplate that provisional measures may international enforcement of judgments. The 2005 be granted either by the court determining the substance of the Hague Convention provides a simplified procedure for dispute or by the courts of another EU Member State where the enforcement of judgments granted by courts which there is sufficient connection between the relief sought and the were the subject of an exclusive jurisdiction clause, state concerned – the prime example being the obtaining of a and 32 countries have now ratified it; interestingly, provisional attachment order in the courts of the place where both China and the USA have signed the convention, the asset is located. although neither has ratified it. In many common law regimes specific statutory measures ■ The 2019 Hague Judgments Convention was finalised have been put in place to enable freestanding proceedings to in July 2019 and will apply to a wider range of judg- be commenced for the purpose of obtaining interim relief in ments where there is no exclusive jurisdiction clause. support of foreign proceedings. However, in the absence of However, as at 31 December 2020, only two countries such provisions, it may be the case that a claimant can only had signed it, and no countries had yet ratified it. make an application for provisional/interim relief if it has also ■ Typically, under these sorts of conventions or trea- commenced substantive proceedings to recognise and enforce a ties, the recognition and enforcement of judgments is foreign judgment in the relevant jurisdiction. governed by a straightforward code which provides only very limited grounds for refusing to enforce a judgment of the other state.

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■ Enforcement of judgments between specified common- The enforcement phase wealth countries. ■ Specific reciprocal statutory provisions create a straight- The enforcement phase involves the process of enforcing forward process for the registration of foreign judg- against specific assets of the debtor. This is often referred to as ments between the relevant commonwealth countries. “execution”. Those assets might include tangible property such This process, unlike the normal common law process as interests in land, movable property or cash, and intangible for enforcement, recognises the foreign judgment rather property such as shares, intellectual property rights or debts. than granting a new judgment based on the debt arising The legal procedures that can be used will depend solely on from the foreign judgment. the national law of the country concerned and will be confined ■ Enforcement where no international treaty or convention by jurisdictional and territoriality principles. applies. Most legal systems will have systems for the enforcement of ■ In civil law jurisdictions, foreign judgments tend to judgments on land, shares, debts and bank accounts, but some be recognised by the process of “exequatur”, by which will require very specific identification of the assets in advance the court formally recognises that a foreign judgment by the creditor, which can create a significant practical bar to should have effect in the relevant legal system as if it enforcement. In particular, banking secrecy laws can result in were a national court judgment. practical difficulties in enforcing against bank accounts where ■ In common law jurisdictions, there is not a process of the contents of the account are not known. exequatur or recognition as such. Instead, the claimant As mentioned above, the interests of third-party creditors can commences proceedings seeking an order for the also pose significant problems in terms of enforcement. payment of the debt created by the foreign judgment. Unsurprisingly, the timescale of proceedings can also vary Whilst the procedure is conceptually different from hugely between jurisdictions, particularly when issues of service the civil law procedure, the same practical effect is are taken into account. achieved by the process and the court will not recon- sider the merits of the underlying judgment. The practicalities of the recognition phase can be fundamental Sovereign Immunity to any enforcement strategy. Typical battlegrounds include: When considering the issue of international enforcement, ■ whether a judgment complies with public policy (and reference must be made to the issue of sovereign immunity. Sharia law) when enforcement is in the Middle East; Sovereign immunity can severely restrict the normal principles ■ whether or not there is “reciprocity” of enforcement of enforcement of judgments. of judgments when enforcing in a civil law jurisdiction Sovereign immunity can arise at two stages. First, there is – arguments are commonly made that because of the immunity against adjudication, and secondly, there is immunity different nature of enforcement in common law jurisdic- against enforcement against the sovereign’s assets. One must tions (as explained above) as compared with the civil law look to the relevant national laws on sovereign immunity in exequatur procedure, there is no reciprocity; order to determine whether it applies. However, one may well ■ whether or not the original court had jurisdiction to grant have to apply different national laws on sovereign immunity in the judgment, applying the test set by the law of the place respect of immunity against adjudication and immunity against of enforcement; and enforcement. ■ whether or not the proceedings were properly served. Accordingly, whenever the defendant and/or the assets against Note that when enforcing under some regimes, judgments which a claimant wishes to enforce has/have close connections obtained by default rather than following participation by the with a state, careful consideration should be given to issues of defendant in the proceedings can be more difficult to enforce. sovereign immunity. In some jurisdictions, it is very easy for a judgment creditor to become embroiled in a litany of seemingly never ending court Limitation Periods in Respect of the hearings and submissions. Genuine experience of the poten- Enforcement of Judgments tial pitfalls and ways of avoiding them is therefore invaluable, The fact that one has obtained a judgment does not mean that combined with reliable local law advice. there are no further considerations in relation to the limita- Following “Brexit”, the UK is no longer an EU Member tion periods. Many jurisdictions will have limitation periods in State. However, where proceedings in the UK or another EU respect of the period within which a judgment must be enforced. Member State were commenced prior to 31 December 2020, As a general principle, one should assume that if a judgment is any judgment subsequently granted in those proceedings will no longer enforceable in the jurisdiction in which it is granted, it be enforceable under the provisions of the Recast Brussels is likely that it will no longer be enforceable in another jurisdic- Regulation (as mentioned above). In other cases, the enforce- tion. However, the applicable rules of the enforcing state may ment of judgments between EU Member States and the UK will also impose limitation periods for enforcement, and so these be governed by the 2005 Hague Convention (where this applies), must be checked as well. under applicable national laws, or under some remaining bilateral treaties between the UK and individual EU Member States. However, the UK has applied to become a party to the Lugano Convention, the terms of which are similar to the intra-EU regime for enforcement.

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 16 International Enforcement Strategy – An Overview

Andrew Bartlett is a Partner in Osborne Clarke’s International Disputes team in London. He is an experienced litigator, working on both court cases and arbitration, with market-leading experience in complex cross-border disputes and a particular focus on international enforcement and asset tracing. Andrew has many years of experience in handling large-scale international disputes, directing and coordinating proceedings in numerous countries working for both corporates and high-net-worth individuals. He has been involved in numerous appellate judgments on issues of jurisdiction, injunctive relief, enforcement and asset tracing, including advising the judgment creditor in the Masri v Consolidated Contractors litigation which involved 12 different countries and over 40 law firms worldwide. Andrew’s innovative approach on past cases has been recognised in the FT Innovative Lawyers Awards and The Lawyer Awards. Andrew’s primary focus is on devising effective litigation and enforcement strategies that yield results for clients, using his experience of complexity to deliver simplicity.

Osborne Clarke LLP Tel: +44 20 7105 7208 One London Wall Email: [email protected] London, EC2Y 5EB URL: www.osborneclarke.com United Kingdom

Osborne Clarke is a future-focused international legal practice with over 1,100 lawyers in 25 locations. We help clients across eight core industry sectors to succeed in tomorrow’s world. Our well-connected international group means we can offer the very best of Osborne Clarke’s sector-led approach and innovative culture wherever in the world you interact with us. And we have a robust understanding of the local business environment and in-depth legal expertise in each jurisdiction. We are listeners, innova- tors and problem solvers, finding new ways to join the dots between our clients’ challenges today and the opportunities being created in an ever- evolving, ever-developing global society. www.osborneclarke.com

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London Chapter 4 17

Belarus Belarus

Alexey Anischenko

Valeria Dubeshka

Sorainen Katsiaryna Hashko

12 Country Finder Convention on legal assistance and 1.1 Please set out the various regimes applicable to legal relations in Georgia, recognising and enforcing judgments in your jurisdiction civil, family and Turkmenistan, Section 3. and the names of the countries to which such special criminal matters Uzbekistan. regimes apply. 1993 (Minsk treaty). Convention on Applicable Law/ Relevant Corresponding legal assistance and Armenia, Statutory Regime Jurisdiction(s) Section Below legal relations in Azerbaijan, General domestic regulation: civil, family and Kazakhstan, Section 3. All jurisdictions criminal matters Kyrgyz Republic, (to the extent that 2002 (Chisinau Tajikistan. Economic otherwise is not treaty). Procedural Code Section 2. provided by the (EPC). Bilateral treaties: relevant interna- Bilateral treaties tional treaty). (including trea- Bulgaria, China, All jurisdictions ties adhered to by Cuba, Cyprus, (to the extent that way of succession Czech Republic, Civil Procedural otherwise is not Section 2. after the USSR) Egypt, Hungary, Code (CPC). provided by the on reciprocal judi- Iran, Italy, relevant interna- cial assistance and Latvia, Lithuania, Section 3. tional treaty). support in civil, Mongolia, Multilateral treaties: family, labour and Pakistan, Poland, criminal matters Russia, Serbia, Agreement on the (the scope of regu- Slovakia, Syria, order of reciprocal lation depends on Turkey, Vietnam. enforcement of the Azerbaijan, the treaty). arbitral awards, Kazakhstan, civil and economic Section 3. Treaty with Russia Kyrgyz Republic, judgments on the on enforce- Tajikistan. territories of the ment of commer- CIS Member States cial (economic, Russia. Section 3. 1998 (CIS treaty). arbitrazh) state court acts 2001 Armenia, ( ). Azerbaijan, Moscow treaty Agreement on Kazakhstan, settlement of Kyrgyz Republic, Section 3. economic disputes Russia, Tajikistan, 1992 (Kiev treaty). Turkmenistan, Ukraine, Uzbekistan.

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 18 Belarus

22 General Regime the provisions of the relevant applicable treaty) accompanied by a notarised translation into one of the state languages (Russian or Belarusian). If the provisions of international law set other 2.1 Absent any applicable special regime, what is the requirements, they have precedence over domestic legal acts. legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for Under Belarusian law, the recognition and enforcement of recognition and enforcement of a foreign judgment? foreign judgments is generally governed by Chapter 28 of the Economic Procedural Code (EPC) and Annex 4 of the Civil Procedural Code (CPC). The required connection is the place of residence (business). The EPC applies to economic disputes related to entrepre- However, if the debtor does not have it on the territory of the neurial activity and other economic activity. Reciprocity may Republic of Belarus or the place is unknown, but still possess serve as a legal basis for recognition and enforcement of a recoverable assets – then the place where such assets are located foreign judgment even if Belarus does not have a corresponding may be claimed as a sufficient connection to justify jurisdiction treaty with a foreign state. of the relevant Belarusian court. The CPC covers recognition and enforcement of all other foreign judgments, including those arising out of civil, labour, 2.5 Is there a difference between recognition and housing and land relations, relations on the use of natural enforcement of judgments? If so, what are the legal resources and the environment, if at least one of the parties to effects of recognition and enforcement respectively? the dispute is a private person. Unlike the EPC, the CPC does not explicitly provide for a possibility to recognise and enforce In accordance with the EPC, the court, deciding on the issue foreign judgments on the basis of the reciprocity principle, but of recognition and enforcement of a foreign judgment, issues a also does not explicitly exclude such a possibility. court ruling and this ruling serves as a ground for enforcement The provisions of international law have precedence over and issuing of an enforcement order. domestic legal acts; namely, they should apply if domestic legal The same applies to the proceedings under the CPC (with one acts contradict them. exception: foreign judgments that do not demand enforcement Precedents are not considered to be official sources of law; are recognised with no further proceedings). however, they serve as evidence of general court practice. At the same time, resolutions adopted by the Supreme Economic Court and the Supreme Court (on 1 January 2014 they merged 2.6 Briefly explain the procedure for recognising and into the one Supreme Court), which elaborate on the application enforcing a foreign judgment in your jurisdiction. of certain legal provisions, are binding on the lower-instance courts. One of such relevant resolutions is the Resolution of the In order to recognise and enforce a foreign judgment a party Plenum of the Supreme Court No. 18 of 23 December 2014 “On must file an application to the court and attach the required application by courts of legislation on recognition and enforce- documents (e.g. evidence that the debtor was duly notified about ment of foreign court judgements and arbitration awards”, the foreign court proceedings, that the copy of application was which succinctly summarises relevant legal sources, rules and sent to the debtor, etc.). The court notifies parties on the time procedures applicable to the recognition of foreign judgments. and place of the hearing; however, the absence of any of the duly notified parties does not preclude the court from hearing the case. The judge shall review an application and issue a ruling 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? within one month from the filing date. This ruling enters into legal force after its issuance and can be appealed against in cassation (appellate in case of the proceed- Both codes incorporate a rather general definition of “foreign ings under the CPC) or supervisory instance. Enforcement judgment”. is carried out in accordance with the execution documents. The EPC defines it as a judgment issued in a dispute and in The term for free-will execution of an executive document by other matters related to entrepreneurial and other economic a debtor comprises seven days and after that an enforcement activity. officer takes enforcement measures. The CPC defines a foreign judgment as a judgment in civil Judgments that do not demand enforcement are recognised cases against citizens, a sentence in criminal matters on compen- automatically; namely, no further proceedings take place. An sation for the damage caused by a crime, as well as acts of other interested party is entitled to submit to the court its objections foreign state’s bodies if the international treaty of the Republic within one month from the date it became aware of the judg- of Belarus provides so. ment to be recognised. After the court considers the objections, it issues the corresponding ruling. The ruling on recognition of 2.3 What requirements (in form and substance) must such a judgment can be appealed against in the Supreme Court. 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 There are no specific requirements with regards to the substance, made? the courts shall not review foreign judgments on the substance. Belarusian courts recognise and enforce only final foreign judg- The foreign judgment may not be reviewed by a Belarusian court ments. Interlocutory judgments or rulings granting interim on its merits. The court only examines whether all the manda- measures will not be recognised and enforced. tory requirements are met to recognise and enforce a foreign The foreign judgment shall be in writing and be filed in the judgment. The parties are free to raise arguments for and court in a duly executed copy (legalised or apostilled subject to

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against recognition and enforcement, but, if parties are silent or judgment was issued or in a third country), it will be not consid- favour recognition and enforcement, a Belarusian court is still ered by a Belarusian court as a ground to deny recognition and obliged to verify compliance with the formal requirements and enforcement in Belarus. public policy in the first place. The grounds for refusal to recognise and enforce a foreign 2.10 What is your court’s approach to recognition and judgment can be found in article 248 EPC and article 5 Annex enforcement of a foreign judgment when there is a 4 CPC, and they are mostly identical (slight differences in the conflicting local law or prior judgment on the same or a scope are outlined below): similar issue, but between different parties? ■ According to the law of the country where the judgment was issued it did not come into force. The review of a foreign judgment on the merits is not permis- ■ The dispute falls under the exclusive competence of sible; however, if the rule in the local law is considered to be a Belarusian courts (courts or other bodies under article 5 public policy rule, then the court will refuse to recognise and Annex 4 CPC). enforce a conflicting foreign judgment. Precedents are not ■ There is a court judgment which has entered into legal considered to be official sources of law, therefore a prior judg- force between the same parties, on the same subject matter ment between the different parties is binding only upon them. and grounds. ■ There is a pending case in a Belarusian court between the same parties, on the same subject matter and grounds, which 2.11 What is your court’s approach to recognition and was initiated before the proceedings in the foreign court. enforcement of a foreign judgment that purports to ■ The limitation period for the enforcement has elapsed. apply the law of your country? ■ Enforcement contradicts public policy of the Republic of Belarus (under article 248 EPC) / enforcement contra- The review of a foreign judgment on the merits is not permis- dicts sovereignty of the Republic of Belarus or basic prin- sible, therefore a foreign judgment that purports to apply ciples of Belarusian law, or endangers the security of the Belarusian law shall be recognised and enforced unless there is Republic of Belarus (under article 5 Annex 4 CPC). a violation of public policy, or other grounds indicated in ques- ■ The party against whom the judgment was issued did not tion 2.7 above are triggered. have an opportunity to participate in the proceedings since it was not given proper timely notice about the proceed- 2.12 Are there any differences in the rules and ings (under article 248 EPC) / the party against whom the procedure of recognition and enforcement between judgment was issued was not given proper notice about the the various states/regions/provinces in your country? time and place of the court proceedings or for any other Please explain. reason was unable to provide its comments to the court (under article 5 Annex 4 CPC). No, Belarus is a unitary state and there is no difference in the The provisions of international law have precedence over rules and procedures of recognition and enforcement between domestic legal acts; namely, they should apply if domestic legal various regions. acts contradict them. Therefore, if any treaty sets different grounds for challenge (e.g. more limited number of grounds), then the court shall apply them. 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment?

2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign The law establishes a three-year limitation period for enforce- judgments relating to specific subject matters? ment of foreign judgments. The limitation period commences running on the day following the date when a foreign judgment has entered into legal force, unless otherwise provided For example, for the recognition of foreign judgments on by an applicable international treaty. If the limitation period bankruptcy article 4 of the Law on Economic Insolvency is missed, it can be restored by the court if it finds the reasons (Bankruptcy) is applied, which provides that foreign judgments for an omission of the limitation period excusable. However, on bankruptcy are recognised and enforced based on the rele- no criteria are established for that judgment, and it is up to the vant treaty or reciprocity principle. court’s discretion to decide if a reason can be viewed as excusable on a case-by-case basis. 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a 32 Special Enforcement Regimes Applicable conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending to Judgments from Certain Countries between the parties? 3.1 With reference to each of the specific regimes The Belarusian court shall refuse recognition and enforce- set out in question 1.1, what requirements (in form ment of a foreign judgment if: (a) there is a judgment issued by a and substance) must the judgment satisfy in order to be recognised and enforceable under the respective Belarusian court on a dispute on the same subject and grounds regime? between the same parties that has entered into legal force; and (b) a dispute is the subject of the pending proceedings in a Belarusian court if such proceedings commenced prior to the Generally, regimes are silent on the form and substance of the commencement of the proceedings in the foreign state where judgment, but rather contain grounds upon which recognition the foreign judgment was issued. and enforcement of judgments can be refused. These grounds However, if there is a final and conclusive judgment involving are similar to those described in question 2.7. the same parties in the other country (country where a foreign

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3.2 With reference to each of the specific regimes set 42 Enforcement 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 4.1 Once a foreign judgment is recognised and enforcement? enforced, what are the general methods of enforcement available to a judgment creditor? No, the treaties introduced in question 1.1 do not specify the difference. They are either silent or generally directly refer to An enforcement officer takes enforcement measures, which do the legislation of the state where the recognition and enforce- not differ from the measures available for the enforcement of ment is sought. Therefore, the rules set out in question 2.5 are local judgments, for example: execution upon property; with- applied. drawal of property and its transfer to the creditor; realisation of arrested property; seize of monetary funds; and suspension of bank account transactions, etc. 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. 52 Other Matters

5.1 Have there been any noteworthy recent (in the Generally, treaties are silent on the procedure for recognition or last 12 months) legal developments in your jurisdiction enforcement of a foreign judgment or directly refer to the legis- relevant to the recognition and enforcement of foreign lation of the state where recognition and enforcement is sought. judgments? Please provide a brief description. Therefore, the rules set out in question 2.6 above are applied. The exceptions relate, for example, to the Moscow treaty. The main long-awaited development is the unified procedural Judicial acts of the Russian competent courts are enforced in code (merging the EPC and CPC), which is supposed to pass Belarus directly, meaning that they do not need a special recog- through the Parliament in the upcoming years. nition procedure. They are enforced in the manner as if judicial On 1 January 2021 an enforcement proceedings database acts of Belarusian courts based on executive documents of the became available. It improves transparency, makes the informa- courts that issued the judgment. tion on enforcement proceedings more structured and provides The CIS treaty also states that the competent court’s judg- creditors with better control over the performance of the execu- ment of one contracting party that has entered into legal force tion documents. shall be executed on the territory of the other contracting party in an indisputable manner. According to the Chisinau treaty, Minsk treaty and some 5.2 Are there any particular tips you would give, or of the bilateral treaties, court judgments which do not require critical issues that you would flag, to clients seeking enforcement are recognised if: to recognise and enforce a foreign judgment in your a) the court of the requesting party has not previously issued jurisdiction? a judgment in this matter that has entered into legal force; or Since foreign judgments are not reviewed on the merits, the b) the case does not fall within the exclusive competence of courts strictly follow the formal criteria established for the the court of the country where recognition is sought. recognition and enforcement of foreign judgments, which may result in the refusal of a foreign judgment’s recognition and enforcement on a purely formal basis. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ The most common formal ground of that kind is incorrect enforcement of a judgment be challenged under the service of process (via email, fax or post) or insufficient time special regime? When can such a challenge be made? to prepare a defence. Thus, in order to successfully recognise and enforce a foreign judgment, a creditor should be extremely careful with the submission of all the necessary documents in Please see question 3.1 thereto. If one party applies for recogni- properly certified form (e.g. notary certification, apostille, trans- tion and enforcement (which should be done within the limita- lation, etc.). tion period indicated in question 2.13 above), the other party has the right to advocate its grounds for challenge within the procedural timelines.

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London Sorainen 21

Alexey Anischenko is a partner and head of the Dispute Resolution team at Sorainen Belarus. Alexey’s practice comprises client representation in commercial arbitration and litigation both in and outside Belarus. As a counsel, he has experience in high-value arbitrations under ICSID, ICC, LCIA, SCC, SIAC, VIAC, IAC at the BelCCI and UNCITRAL rules and litigation in Belarusian courts. As an arbitrator, he is on the Lists of Recommended Arbitrators of IAC at the BelCCI, VIAC, VCCA and the Sports Arbitration Court of the Belarusian Republican Union of Lawyers. He has been appointed as an arbitrator under the ICC, SCC and IAC rules by parties and institutions. Most recently, Alexey was invited to join the International Advisory Committee of VIAC. Alexey also possesses unique experience of acting as the General Advisor to the CIS Economic Court and delivering expert reports to the EurAsEC Court in cases related to investment and arbitration. He is also designated to the ICSID Panel of Arbitrators and to the roster of experts for resolution of CIS disputes by Belarus.

Sorainen Tel: +375 17 306 21 02 ul Internatsionalnaya 36-1 Email: [email protected] Minsk, 220030 URL: www.sorainen.com Belarus

Valeria Dubeshka is an associate of the Dispute Resolution team at Sorainen Belarus. She has participated in resolving complex international disputes in the fields of international trade and construction both in Belarusian courts and in the following international arbitration institutions: ICC (Paris); SCC (Stockholm); SIAC (Singapore); VIAC (Vienna); and IAC at the BelCCI (Belarus). Valeria has experience in recognition and enforcement proceedings representing local and foreign clients in Belarus, as well as coordinating recognition and enforcement proceedings abroad. Valeria actively participated in moot courts (e.g. the Willem C. Vis Moot, ICC lex mercatoria) and coached moot teams, where she developed her skills, inheld spirit and stamina required for successful professional practice. While pursuing an LL.M. degree at Stockholm University she was an intern at the Arbitration Institute of the Stockholm Chamber of Commerce and gained a substantial insight into the SCC’s work, which she now successfully uses as counsel for the benefit of clients.

Sorainen Tel: +375 17 306 21 02 ul Internatsionalnaya 36-1 Email: [email protected] Minsk, 220030 URL: www.sorainen.com Belarus

Katsiaryna Hashko is an associate of the firm’s Dispute Resolution team, focusing mostly on international arbitration. She has already gained solid experience in complex multi-jurisdictional disputes in the trade, construction, banking, IT and industry sectors, including several sophisticated CISG-related cases, considered under the auspices of ICC, VIAC, CAM and other leading European arbitration centres.

Sorainen Tel: +375 17 306 21 02 ul Internatsionalnaya 36-1 Email: [email protected] Minsk, 220030 URL: www.sorainen.com Belarus

Sorainen is a fully integrated regional business law firm, advising organi- Our Dispute Resolution team is recognised internationally with partners sations on all business law and tax issues involving the Baltic States and from all four of our countries included in The Legal 500 list of leading indi- Belarus. viduals and in the Global Arbitration Review 100 list; we are also ranked in With uniquely integrated offices in Estonia, Latvia, Lithuania and Belarus, Band 1 for dispute resolution by Chambers Europe. we operate as a single connected legal ecosystem. Our regional teams www.sorainen.com combine their legal and tax expertise to cover all sectors and practice areas, our offices share a unified practice and quality management system, while our know-how is exchanged amongst our team of 200 lawyers and tax specialists. We have closely partnered with businesses – local, regional and international – to increase prosperity in the Baltic States and Belarus by helping our clients succeed in business. Our approach, regardless of a client’s size and scope, is to help a business succeed by providing exact solutions to carefully evaluated legal issues.

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 22 Chapter 5 Bermuda Bermuda

Mark Chudleigh

Kennedys Lewis Preston

12 Country Finder amount due under it if the judgment is final and conclusive on the merits between the same parties, for a definite sum of money (provided that sum does not constitute tax, a fine or a penalty), 1.1 Please set out the various regimes applicable to was not obtained by fraud or contrary to the principles of natural recognising and enforcing judgments in your jurisdiction justice, and enforcement would not be contrary to public policy. and the names of the countries to which such special The Bermuda Supreme Court will consider a judgment to be regimes apply. final and conclusive provided that it is not capable of being varied by the court that made it. Applicable Law/ Relevant Corresponding For recognition of particular foreign judgment’s findings, and Statutory Regime Jurisdiction(s) Section Below as to their ability to bind parties in proceedings in Bermuda, as above, the foreign court must be of competent jurisdiction and its Bermuda Common decision must be final and conclusive on the merits between the Law and the same parties, the issue raised must be identical to the particular Judgments (Reciprocal Bermuda. Sections 2 and 3. issue in the Bermuda proceedings, and the decision on the issue Enforcement) Act 1958 must have been necessary for the foreign judgment, not merely (the “1958 Act”). collateral. Under both the 1958 Act and common law, a judgment is deemed to be final and conclusive even if an appeal is 22 General Regime pending against it or if it may become the subject of an appeal. If the foreign judgment orders the judgment debtor to do anything other than pay the judgment creditor a sum of money, 2.1 Absent any applicable special regime, what is the such as performing a contract, it will be unenforceable, although legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? it can nonetheless be recognised as providing for res judicata at common law, thereby creating a cause of action estoppel. Accordingly, a party to foreign proceedings will be prevented Where the 1958 Act does not apply, Bermuda applies standard from denying any matter of fact or law decided in the foreign common law principles to the recognition of foreign judgments. proceedings where it is shown that the foreign court was competent to act, the judgment is final and conclusive and was made 2.2 What constitutes a ‘judgment’ capable of on the merits. For the estoppel to operate, the parties to the recognition and enforcement in your jurisdiction? proceeding in Bermuda must be the same as the parties to the foreign litigation, and matters in dispute must also be identical. Unlike other commonwealth jurisdictions, there are no “Judgment” is defined for the purposes of the 1958 Act as “ a judg- specific statutory provisions or common law rules in Bermuda ment or order given or made by a court in any civil proceedings, or a judgment enabling the enforcement of interim or permanent injunctions. or order given or made by a court in any criminal proceedings for the payment of money in respect of compensation of damages to an injured party; and it also includes an award in proceedings on an arbitration if the award has, in pursu- 2.4 What (if any) connection to the jurisdiction is ance of the law in force in the place where it was made, become enforceable in required for your courts to accept jurisdiction for the same manner as a judgment given by a court in that place”. recognition and enforcement of a foreign judgment? Bermuda common law generally applies this as its definition of “Judgment”. The Bermuda Court accepts jurisdiction in respect of enforcement of foreign judgments generally, but Bermuda property will be necessary for effective enforcement. 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? A judgment given by a foreign court of competent jurisdiction (in a Bermudian/English private international law sense, i.e. the defendant was present in the foreign country when the proceed- In principle, recognition is a precursor to enforcement, but not ings were issued or submitted to that jurisdiction by agreement all recognised judgments are strictly speaking enforceable or or action) may be enforced in Bermuda by an action for the appropriate to enforce. It has been said in the leading English

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text on the conflict of laws, Dicey, that “while a court must recognise 4. breach of the rules of natural justice in the proceedings in every foreign judgment it enforces, it need not enforce every judgment it recog- which the judgment was obtained. nises”. That statement of principle holds true in Bermuda. Regardless of whether enforcement is sought under the 1958 As above, it is possible for a foreign judgment to be recognised Act or at common law, the Protection of Trading Interests Act at common law where enforcement is not possible (for example, 1981 makes clear that no judgment in respect of multiple damages, because it is in respect of something other than a definite sum of i.e. an amount arrived at by doubling, trebling or otherwise multi- money, such as the specific performance of a contract). In such plying the sum assessed as compensation, is capable of being regis- circumstances, the foreign judgment can be relied upon by way tered. The 1981 Act also precludes (in certain circumstances) the of a defence in proceedings before the Bermuda Court. registration of foreign judgments under foreign laws designed to restrict competition. 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 relating to specific subject matters? A Writ must be issued and endorsed with a statement of claim which pleads a replication of the foreign claim, the existence of and reliance on the foreign judgment, the amount of the judg- There is no such legal framework applicable to recognising and ment debt and the costs claimed under the Writ. enforcing foreign judgments. Upon service of the Writ, the judgment debtor has 14 days to enter an appearance and a further 14 days in which to submit a 2.9 What is your court’s approach to recognition and defence. enforcement of a foreign judgment when there is: (a) a If the debtor does not enter an appearance, the judgment cred- conflicting local judgment between the parties relating itor can obtain judgment by default. Otherwise, they can apply to the same issue; or (b) local proceedings pending for a summary judgment (either before or after any defence) by between the parties? filing a Summons and a short affidavit in support relying on the foreign judgment. Where there is an earlier conflicting Bermuda judgment between the parties relating to the same issue as determined by 2.7 On what grounds can recognition/enforcement of a the foreign judgment, a defendant would be entitled to resist judgment be challenged? When can such a challenge be enforcement of the foreign judgment on res judicata grounds. made? Where Bermuda proceedings are pending when one of the parties seeks recognition or enforcement of a foreign judgment on the same issue(s), the pending Bermuda proceedings are likely to be A foreign judgment that is both final and conclusive on the subject to the foreign judgment and may be stayed pending confir- merits cannot be challenged on the basis of an error of fact mation of the recognition/enforceability of the foreign judgment. or law. The Supreme Court will treat the matters adjudicated upon by the foreign court as having been finally determined and stands ready to enforce a foreign judgment if it does not fall 2.10 What is your court’s approach to recognition and within one of the excluded categories. enforcement of a foreign judgment when there is a It is therefore not for the Supreme Court to engage in a conflicting local law or prior judgment on the same or a rehearing or reassessment of the merits of the foreign proceed- similar issue, but between different parties? ings on an application for enforcement. Accordingly, the court does not sit as a court of appeal against a judgment pronounced Absent a challenge on the bases above (which encompass some on the merits by a competent foreign court. Bermuda law principles such as a prohibition on fraud and which A judgment debtor can resist registration of a judgment under protect public policy considerations), the Bermuda Court will not the 1958 Act by satisfying the court that: refuse to enforce a foreign judgment on the basis of an error of fact 1. the foreign judgment is not a judgment to which the 1958 Act or law, including the foreign court’s determination of Bermuda law. applies, for example because it is not a judgment of a superior court (the term ‘superior court’ being defined by the Act); 2.11 What is your court’s approach to recognition and 2. the foreign court had no jurisdiction; enforcement of a foreign judgment that purports to 3. the debtor did not receive sufficient notice of the proceed- apply the law of your country? ings to enable them to defend the proceedings and did not appear; Please see question 2.10 above. 4. the judgment was obtained by fraud; 5. the rights conferred by the judgment are not vested in the person seeking its enforcement; or 2.12 Are there any differences in the rules and 6. the matter in dispute giving rise to the registered judg- procedure of recognition and enforcement between ment was previously determined, and subject to a final and the various states/regions/provinces in your country? Please explain. conclusive judgment by a court having jurisdiction over the matter. There are wider grounds for resisting enforcement at common There are no differences in the rules and procedure of recogni- law. Those most frequently relied upon are: tion and enforcement between the various parishes of Bermuda. 1. want of jurisdiction by the foreign court, which is determined according to Bermudian law; 2.13 What is the relevant limitation period to recognise 2. fraud; and enforce a foreign judgment? 3. public policy (including that the sum sought to be enforced is payable in respect of taxes or similar charges, a fine or Under the 1958 Act (see below), a judgment creditor has six years other penalty); and from the date of the foreign judgment to register it in Bermuda.

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Where steps are taken to appeal the foreign judgment, the 10. must not be against a judgment debtor who, under the six-year period will begin to run from the date of the last judg- rules of public international law, was entitled to immunity ment given in the proceedings. from the jurisdiction of the foreign court. At common law, the foreign judgment creates a debt capable The Bermuda Court may also refuse to register a foreign judg- of enforcement under the law of obligation, and time will begin ment where there is a previous final and conclusive foreign judg- to run from the date of the foreign judgment. The usual limi- ment in the matter inconsistent with that sought to be registered. tation period for actions arising from a simple contract, such as debt, is six years. 3.2 With reference to each of the specific regimes set The statute of limitations of the foreign jurisdiction is irrel- out in question 1.1, does the regime specify a difference evant to the running of time for enforcement in Bermuda. A between recognition and enforcement? If so, what is the foreign judgment given on the basis of a foreign law relating to difference between the legal effect of recognition and limitation will be deemed by the Bermuda Court to have been enforcement? determined on its merits. The regime does not specify a difference between recognition 32 Special Enforcement Regimes Applicable and enforcement. to Judgments from Certain Countries 3.3 With reference to each of the specific regimes set 3.1 With reference to each of the specific regimes out in question 1.1, briefly explain the procedure for set out in question 1.1, what requirements (in form recognising and enforcing a foreign judgment. and substance) must the judgment satisfy in order to be recognised and enforceable under the respective regime? An application must be made by Originating Summons with an affidavit in support exhibiting a certified copy of the foreign judgment to the Supreme Court within six years of the date of the To be recognised and enforceable under the 1958 Act, the foreign judgment (or any determination of an appeal of the judgment) and judgment: served on the defendant. Although the defendant is not required 1. must be from a prescribed Commonwealth Jurisdiction to enter an appearance, he may either file evidence in response, including, amongst others, the UK, Australia and numerous or wait for the making of the Order registering the foreign judg- Caribbean jurisdictions (although notably not the Cayman ment, which will provide a time period (usually 28 days) for the or Turks and Caicos Islands), Hong Kong, Nigeria, Guyana defendant to file a Summons to set aside with evidence in support. and Gibraltar. It should be noted that the United States, the Channel Islands, Singapore, Canada, India, South Africa and New Zealand are not included. 3.4 With reference to each of the specific regimes set 2. must be of ‘a superior court’ of the foreign jurisdiction (e.g. out in question 1.1, on what grounds can recognition/ not a county court or magistrates’ court in the UK); enforcement of a judgment be challenged under the special regime? When can such a challenge be made? 3. must be final and conclusive on the merits as between the parties; 4. must be for a definite sum of money, excluding a sum On the failure to satisfy the grounds for registration above and payable in respect of taxes, a fine or penalty; in accordance with the procedure. 5. must be (or the latest appeal ruling in respect of it must be) less than six years old; 42 Enforcement 6. must have been issued by a court which had jurisdiction (as defined in the statute) to make that judgment, which in the 4.1 Once a foreign judgment is recognised and case of: enforced, what are the general methods of enforcement 6.1 an action in personam: (a) requires submission to the available to a judgment creditor? foreign proceedings other than for the purpose of protecting, or obtaining the release of property seized; Once a foreign judgment is registered under the 1958 Act, or (b) requires that the judgment debtor was resident in or recognised as enforceable at common law, the judgment may be had his principal place of business in the foreign juris- enforced as if it had been made by the Supreme Court by way of: diction when the claim was issued; or (c) requires that 1. Writ of fieri facias; the judgment debtor had an office or place of business 2. garnishee proceedings; in the foreign jurisdiction, and such proceeding was 3. the appointment of a receiver; in respect of a transaction effected through such an 4. committal (in appropriate circumstances); office or place; 5. Writ of sequestration; and/or 6.2 an action against property, requires that the property 6. insolvency proceedings. was, at the time of the proceedings giving rise to the judgment, situated in the foreign jurisdiction; 52 Other Matters 7. must have been made in circumstances where the defendant received notice of the proceedings with sufficient time to defend them; 5.1 Have there been any noteworthy recent (in the 8. must not have been obtained by fraud; last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign 9. must not have been issued contrary to an agreement to judgments? Please provide a brief description. settle the dispute in another jurisdiction, unless the foreign proceedings giving rise to the foreign judgment had been submitted to in waiver of that agreement; and There have not been any noteworthy recent legal developments in Bermuda relevant to the recognition and enforcement of foreign judgments.

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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?

Enforcement advice should be sought before commencing foreign proceedings, if possible, to ensure that all requirements for enforcement are met by the foreign proceedings/judgment.

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Mark Chudleigh, managing partner of the Bermuda office of the global law firm, Kennedys, has over 30 years of commercial litigation experience including in the City of London, the United States and Bermuda. He maintains an international practice and frequently represents clients on complex, multijurisdictional matters, including matters involving the United States, having been admitted as an attorney in the State of California in 1998. Mark’s practice encompasses commercial/corporate litigation, insurance and reinsurance, private client/trust matters, regulatory issues and insolvency. He frequently acts as an expert witness on Bermuda law and is regularly appointed as an arbitrator in commercial disputes. Mark has been recognised as a leading lawyer in Bermuda by several directories, including Chambers Global and The Legal 500.

Kennedys Tel: +1 441 278 7160 20 Brunswick Street Email: [email protected] Hamilton HM 10 URL: www.kennedyslaw.com Bermuda

Lewis Preston is a commercial litigation barrister with over 10 years’ experience, admitted to the English, Bermuda and BVI Bars. Lewis practised for six years in London, spent two and-a-half years in Hong Kong as a litigation associate at offshore firm Maples, during which time he litigated BVI and Cayman Islands disputes, and has spent the last two years as a senior associate at Kennedys in Bermuda. Recent work includes representing a protector in a multi-billion dollar trust dispute, representing a liquidator investigating a structure allegedly involved in a £1 billion VAT fraud, representing directors in a US$300 million breach of fiduciary duty and confidentiality dispute, representing an insurer in an arbitration dispute to secure the first commonwealth estoppel defence in an enforcing court in reliance on a decision of a supervising court, drafting the documents to obtain an injunction in a US$750 million unlawful conspiracy/breach of duty claim, defending a US$60 million winding-up petition to prevent the liquidation of the largest Chinese retailer in its sector, and representing shareholders defending a US$100 million unfair prejudice petition.

Kennedys Tel: +1 441 534 7161 20 Brunswick Street Email: [email protected] Hamilton HM 10 URL: www.kennedyslaw.com Bermuda

Kennedys, the only “onshore” law firm with a Bermuda presence, provides expert counsel and representation in relation to commercial, corporate, insurance industry and private client matters. The firm handles commercial litigation and arbitration, private client, general corporate advisory/regulatory work across all business sectors, insolvency and restructuring matters, corporate and trust disputes, contract drafting, and general corporate advisory/regulatory work across all business sectors. The firm excels at prosecuting and defending complex matters involving significant exposure, sensitive public relations issues, and industry-wide policies. Kennedys offers its clients not only local Bermuda expertise but also multinational legal expertise as part of the international law firm Kennedys Law LLP. www.kennedyslaw.com

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Brazil Brazil

Eduardo Perazza de Medeiros

Machado Meyer Sendacz e Opice Advogados Ariana Júlia de Almeida Anfe

12 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 Federal Constitution (Article 105, letter l, item i, and Article 109, letter X). Brazil. Section 2. Code of Civil Procedure (Article 515, item VIII and Articles 960 to 965). Brazil. Section 2. Rules of Procedure of the Superior Court of Justice – Articles 216-A Brazil. Section 2. to 216-X. Convention of Judicial Cooperation on Civil Issues, between the Government of the Federative Republic of Brazil and the Kingdom of Spain. Section 3. Spain, (Decree No. 166, dated 3 July 1991). Agreement of Judicial Cooperation on Civil, Commercial, Labour and Administrative Issues between the Government of the Federative Uruguay. Section 3. Republic of Brazil and the Oriental Republic of Uruguay, enacted in Brazil by Decree No. 1,850, dated 28 December 1992. Las Leñas Protocol on Jurisdictional Cooperation and Assistance in MERCOSUL: Argentina; Civil, Commercial, Labour and Administrative Matters (Legislative Brazil; Paraguay; and Decree No. 55, dated 19 April 1995, Decree No. 2,067, dated 12 Section 3. Uruguay – and Bolivia November 1996, Legislative Decree No. 1,021, dated 24 November and Chile. 2005, and Decree No. 6,891, dated 2 July 2009). Treaty Relating to Judicial Cooperation and the recognition and execution of decisions on Civil Issues between the Government of the Italy. Section 3. Federative Republic of Brazil and the Italian Republic (Decree No. 1,476, dated 2 May 1995). Inter-American Convention on International Commercial Arbitration Signatory countries to the – Panama Convention (Decree No. 90, dated 6 June 1995, and Decree Section 3. Convention. No. 1,902, dated 9 May 1996). Inter-American Convention on the Extraterritorial Validity of Foreign Signatory countries to the Judgments and Arbitral Awards – Montevideo Convention (Decree No. Section 3. Convention. 93, dated 20 June 1995, and Decree No. 2,411, dated 2 December 1997). Agreement of Judicial Cooperation on Civil, Commercial, Labour and Administrative Issues between the Government of the Federative Argentina. Section 3. Republic of Brazil and the Government of the Argentine Republic (Decree No. 1,560, dated 18 July 1995). Brazilian Arbitration Law – Federal Law No. 9,307, dated 23 September Brazil. Section 2. 1996 (as amended by Federal Law No. 13,129, dated 26 May 2015). Protocol of Cooperation and Jurisdictional Aid on Civil, Commercial, MERCOSUL: Argentina; Labour and Administrative Issues between the Countries of the Brazil; Paraguay; and Section 3. MERCOSUL (Decree No. 2,067, dated 12 November 1996). Uruguay. Inter-American Convention on the Extraterritorial Validity of Foreign Signatory countries to the Judgments and Arbitration Awards (Decree No. 2,411, dated 2 Section 3. Convention. December 1997).

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Applicable Law/Statutory Regime Relevant Jurisdiction(s) Corresponding Section Below Cooperation Agreement on Civil Issues between the Government of the Federative Republic of Brazil and the Government of the French France. Section 3. Republic (Decree No. 3,598, dated 12 September 2000). UN Convention on the Recognition and Enforcement of Foreign Signatory countries to the Arbitral Awards 1958 – New York Convention (Decree No. 4,311, Section 3. Convention. dated 23 June 2002). MERCOSUL: Argentina; MERCOSUL Agreement on International Commercial Arbitration – Brazil; Paraguay; and Section 3. Buenos Aires Convention (Decree No. 4,719, dated 4 June 2003). Uruguay. Protocol of Cooperation and Jurisdictional Aid on Civil, Commercial, MERCOSUL: Argentina; Labour and Administrative Issues between the Government of the Brazil; Paraguay; and Section 3. Member States of the MERCOSUL and the Republic of Bolivia and Uruguay – and Bolivia the Republic of Chile (Decree No. 6,891, dated 2 July 2009). and Chile. Treaty to Judicial Cooperation on Civil and Commercial Issues between the Federative Republic of Brazil and the Republic of China China. Section 3. (Decree No. 8,430, dated 9 April 2015). Convention on Obtaining Evidence Abroad in Civil or Commercial Signatory countries to the Section 3. Matters (Decree No. 9,039, dated 27 April 2017). Convention. Rules of Procedure of the Superior Court of Justice – Articles 216-A Brazil. Section 2. to 216-X.

22 General Regime rendered; and (d) the party presented a certified copy of the foreign judgment along with a Portuguese version of such judgment, translated by an authorised translator. With respect to arbitral awards, it 2.1 Absent any applicable special regime, what is the is also required that: (a) the parties to the arbitral proceeding have legal framework under which a foreign judgment would capacity to engage in arbitration; (b) the arbitration agreement is be recognised and enforced in your jurisdiction? valid under the law applicable to the agreement, or under the law of the country where the award was made; and (c) the object of The recognition and enforcement of foreign judgments in Brazil dispute can be settled by arbitration under Brazilian Law. is essentially ruled by the Introductory Law to the Brazilian Additionally, to be recognised and enforced in Brazil, the Legal System – Decree Law No. 4,657/1942, and by the Rules foreign judgment shall not violate national sovereignty, good of Procedure of the Superior Court of Justice – Articles 216-A morals, and public policy. The term public policy is not defined to 216-X, in addition to Section 105, letter l, item i, and Article by any legal provision in Brazil; however, it is broadly interpreted 109, letter X, of the Federal Constitution, and Sections 515, item as the set of values and fundamental political choices prevalent VIII, and 960 to 965 of the Code of Civil Procedure. in a particular society, at a particular moment in history, as a rule, specified in the Constitution. 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 For the purposes of recognition and enforcement, a foreign recognition and enforcement of a foreign judgment? ‘judgment’ is any final and non-appealable decision rendered by a Foreign Court or tribunal (Section 962, Code of Civil Procedure As a rule, Brazilian Law does not require any specific connec- and Section 216-D, III, Rules of Procedure of the Superior Court tion to Brazil to accept jurisdiction for recognition and enforce- of Justice). Sections 216-O to 216-X of the Rules of Procedure of ment of a foreign judgment. Nonetheless, there are precedents the Superior Court of Justice allow the recognition and enforce- of the Superior Court of Justice denying recognition, based on ment of foreign interlocutory decisions in Brazil. the general principal of effectiveness, due to the absence of any Brazilian Courts may grant injunctions or commence the point of connection between Brazil and the matter under discus- provisory enforcement of the foreign judgment (paragraph 3, sion (see: STJ, SEC 8,542, 2017). Article 961, Code of Civil Procedure).

2.5 Is there a difference between recognition and 2.3 What requirements (in form and substance) must enforcement of judgments? If so, what are the legal a foreign judgment satisfy in order to be recognised and effects of recognition and enforcement respectively? enforceable in your jurisdiction? Yes, these concepts have different meanings under Brazilian A foreign judgment shall be recognised and enforceable in Brazil Law. Recognition is understood as the acceptance, by the provided that: (a) it was rendered by a Court or arbitral tribunal Brazilian Court, of the legal rights and obligations made by with jurisdiction over the matter (as determined by the rules of the rendering Court in the foreign jurisdiction; enforcement is jurisdiction of the place of origin); (b) the parties have been duly understood as the application of the local legal procedures to summoned and took part in the lawsuit, or allowed judgment to ensure that the judgment debtor will obey the foreign judgment. go by default; (c) it is a final decision, having fulfilled the neces- The recognition of a foreign judgment is a prerequisite to its sary formalities to be enforceable in the jurisdiction where it was enforcement in Brazil.

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2.6 Briefly explain the procedure for recognising and ■ the arbitral award was issued beyond the scope of the arbi- enforcing a foreign judgment in your jurisdiction. tration agreement and it was not possible to separate the exceeding portion from what was submitted to arbitration; The Superior Court of Justice is the authority with jurisdic- ■ the commencement of the arbitration proceedings was not tion to recognise a foreign judgment in Brazil. The procedure in accordance with the submission agreement or the arbi- begins with the submissions of a formal request by the inter- tration clause; or ested party, addressed to the President of the Superior Court of ■ the arbitral award has not yet become binding on the Justice, which should be presented along with the documents parties or has been set aside or suspended by a Court in the that demonstrate the compliance with the requirements indi- country where the arbitral award was made. cated in question 2.3, especially the original or certified copy of the judgment to be recognised, as well as of the arbitral agree- 2.8 What, if any, is the relevant legal framework ment, in case of arbitral awards. applicable to recognising and enforcing foreign These documents must be accompanied by a sworn transla- judgments relating to specific subject matters? tion into Portuguese and have been previously authenticated by the competent Brazilian consular authority, or notarised and Brazilian Law has no particular provisions to regulate the recog- apostilled by the foreign authority if the HCCH Convention nition and enforcement of foreign judgments relating to specific Abolishing the Requirement of Legalisation for Foreign Public subject matters. Documents 1961 (Apostille Convention) is in force in the country where the documents were issued. Should the request and documents submitted be considered 2.9 What is your court’s approach to recognition and sufficient by the President of the Superior Court, he will issue enforcement of a foreign judgment when there is: (a) a an order of service on the defendant, who is allowed to present conflicting local judgment between the parties relating a response to the request. Both plaintiff and defendant can to the same issue; or (b) local proceedings pending between the parties? present other petitions and additional documents, if necessary. If the defendant agrees with the request for recognition, the President of the Superior Court of Justice will alone decide on the Brazilian Law does not recognise international lis pendens, i.e. case. Should the defendant file a response challenging the request, a lawsuit brought before a Foreign Court does not prevent the case will be deliberated by a special collegiate chamber. a Brazilian Court from processing and deciding on the same The Public Prosecutor’s Office will be summoned to present subject matter. The local proceeding would only be dismissed, an opinion on the request for recognition, before the final deci- on the grounds of lis pendens, if the foreign judgment had already sion by the Superior Court. been recognised by the Superior Court of Justice, and this recog- In very exceptional cases, the parties involved can present nition decision is final and no longer subject to any appeal (res extraordinary appeals to the Federal Supreme Court. judicata). If recognition is granted, the decision is made final and unap- pealable, and the interested party may trigger the enforcement 2.10 What is your court’s approach to recognition and procedure, which will be processed before a State Federal Court. enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a 2.7 On what grounds can recognition/enforcement of a similar issue, but between different parties? judgment be challenged? When can such a challenge be made? Upon deciding about the recognition and enforcement of a foreign judgment, Brazilian Courts will not analyse the merits of The recognition/enforcement of a judgment may be challenged the judgment, but only the formal and substantive requirements on the grounds of non-fulfilment of either formal or substan- (please refer to question 2.3). A foreign judgment may not there- tive requirements. Accordingly, the defendant may argue that: fore be challenged on the grounds that the Foreign Court was ■ the summons was not duly served to the defendant; manifestly wrong on the merits of the case or misapplied the ■ the foreign judgment is not a final decision or it has been relevant law. However, if the Foreign Court’s judgment violated issued without the necessary formalities to be enforceable Brazil’s national sovereignty or public policy, the Superior Court in the jurisdiction where it was rendered; shall deny recognition. ■ the Court or tribunal that issued the foreign judgment had no jurisdiction to do so; 2.11 What is your court’s approach to recognition and ■ the interested party failed to observe the procedural enforcement of a foreign judgment that purports to requirements or to provide the necessary documents for apply the law of your country? the recognition proceeding; or ■ the foreign judgment violates Brazil’s national sovereignty, good morals and/or public policy. Upon deciding about the recognition and enforcement of a With respect to arbitral awards, the recognition may also be foreign judgment, Brazilian Courts will not analyse the merits challenged on the following grounds: of the judgment, but only the formal and substantive require- ■ the parties to the arbitration agreement were under some ments (please refer to question 2.3). Therefore, the recognition incapacity; of a foreign judgment is not open to challenge on the ground ■ the arbitration agreement was not valid under the law to that it misapplies Brazilian Law. which the parties have subjected it, or failing any indication It is worth noting, however, that Brazilian Law sets forth the thereon, under the law of the country where the award was exclusive jurisdiction of Brazilian Courts over certain subject made; matters. ■ it was not given proper notice of the appointment of an arbitrator or the arbitral proceedings, or was otherwise unable to present his case;

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2.12 Are there any differences in the rules and 3.4 With reference to each of the specific regimes set procedure of recognition and enforcement between out in question 1.1, on what grounds can recognition/ the various states/regions/provinces in your country? enforcement of a judgment be challenged under the Please explain. special regime? When can such a challenge be made?

The same rules and procedure of recognition and enforcement ■ Las Leñas Protocol provides that recognition/enforce- of foreign judgments apply to all Brazilian territory. ment may be challenged on the grounds that, in the jurisdiction where the decision is to be recognised/enforced: (a) a previous decision was rendered, involving the same 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? parties, facts and object, being incompatible with the judgment to be recognised/enforced; or (b) there is a pending procedure involving the same parties, facts and object. Brazilian Law does not provide for a specific rule on the limita- ■ The Panama Convention provides that recognition/ tion period related to the procedures of recognition and enforce- enforcement may be challenged on the grounds that: (a) the ment of foreign judgments. From a conservative perspective, arbitral agreement is invalid and/or parties lacked capacity it can be argued that the limitation period to the recognition for signing it; (b) the defendant was not duly notified of the request is the same as the one applicable to the procedure in proceedings, of the appointment of arbitrators or in any which the relevant judgment was rendered (referring to the way was denied the opportunity to present its case; (c) the statute of limitation determined by the foreign jurisdiction). award decides on matters not comprised in the scope of the arbitral agreement; (d) the arbitral proceeding – and/ 32 Special Enforcement Regimes Applicable or the constitution of the arbitral tribunal – was carried out to Judgments from Certain Countries in a way that is incompatible with the terms of the arbitral agreement; (e) the relevant decision is not binding or has 3.1 With reference to each of the specific regimes been suspended or set aside in the jurisdiction of origin; (f) set out in question 1.1, what requirements (in form the subject matter of the dispute is not arbitrable under the and substance) must the judgment satisfy in order to law of the jurisdiction in which the decision is to be recog- be recognised and enforceable under the respective nised/enforced; or (g) the recognition/enforcement of the regime? relevant decision would violate the public order of the jurisdiction in which it is to be recognised/enforced. In general, the specific regimes set out in question 1.1 follow the ■ The New York Convention provides that recognition/ same requirements imposed by the general rules provided by the enforcement may be challenged on the grounds that: (a) the Brazilian Code of Civil Procedure and by the Rules of Procedure arbitral agreement is invalid and/or parties lacked capacity of the Superior Court of Justice. for signing it; (b) the defendant was not duly notified of the It is worth mentioning the following particularities: proceedings, of the appointment of arbitrators or in any ■ The New York Convention provides that arbitral awards, to way was denied the opportunity to present its case; (c) the be enforced, must be preceded by a valid arbitration clause award decides on matters not comprised in the scope of or agreement, which must have been made in writing. the arbitral agreement; (d) the arbitral proceeding – and/ ■ The MERCOSUL Agreement on International Commercial or the constitution of the arbitral tribunal – was carried out Arbitration requires that arbitral awards shall contain: (a) the in a way that is incompatible with the terms of the arbitral date and place where they were rendered; (b) the grounds agreement; (e) the relevant decision is not binding or has that support their conclusions; (c) a decision that encom- been suspended or set aside in the jurisdiction of origin; (f) passes all matters submitted by the parties; and (d) informa- the subject matter of the dispute is not arbitrable under the tion on the arbitration’s expenses. law of the jurisdiction in which the decision is to be recognised/enforced; or (g) the recognition/enforcement of the relevant decision would violate the public order of the juris- 3.2 With reference to each of the specific regimes set diction in which it is to be recognised/enforced. out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the ■ The MERCOSUL Agreement on International Commercial difference between the legal effect of recognition and Arbitration refers to the rules provided by other interna- enforcement? tional conventions.

The specific regimes set out in question 1.1 do not expressly 42 Enforcement specify a difference between recognition and enforcement. However, for those with broader application (the Las Leñas 4.1 Once a foreign judgment is recognised and Protocol, Panama Convention, Montevideo Convention and enforced, what are the general methods of enforcement New York Convention), such differentiation is implicit. available to a judgment creditor?

Once a judgment is recognised, a judgment creditor has avail- 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for able to it the same methods and options to enforce that judg- recognising and enforcing a foreign judgment. ment against assets in Brazil as it would if the original judgment had been rendered by a Brazilian Court or Tribunal. The procedure begins with a writ of execution extracted by In general, the specific regimes set out in question 1.1 provide the Superior Court of Justice and is processed before a State that the recognition and enforcement of a Court decision or Federal Court, according to internal jurisdiction rules. Once arbitral awards should be ruled by the law of the jurisdiction the writ of execution reaches the Federal Court, it follows the where such decision is to be recognised and enforced. same enforcement proceedings applicable to the enforcement of

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a domestic judgment. The Federal Court will then be able to 5.2 Are there any particular tips you would give, or order the fulfilment of the award or other actions necessary to critical issues that you would flag, to clients seeking enforce the foreign judgment, such as: to recognise and enforce a foreign judgment in your ■ The seizure and freezing of bank accounts. jurisdiction? ■ The seizure of assets and their subsequent sale at auction. ■ The seizure of credit rights that the debtor is entitled to. The party may have some difficulty in enforcing default judg- ■ Any other measures that are legally deemed to be neces- ments in Brazil, given that Brazilian Courts tend to be strict in sary for the enforcement. analysing whether the defendant actually had the opportunity to appear in the original lawsuit. 52 Other Matters Also, time may be a sensitive issue to be considered by a party interested in recognising and enforcing a judgment in Brazil. If 5.1 Have there been any noteworthy recent (in the the procedure becomes contentious, the final decision may be last 12 months) legal developments in your jurisdiction delayed. relevant to the recognition and enforcement of foreign judgments? Please provide a brief description.

There have been no significant legal developments in Brazil, relevant to the recognition and enforcement of foreign judgments, in the last 12 months.

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Eduardo Perazza de Medeiros is a partner in the litigation and arbitration department. He engages in several types of litigation, administrative and judicial procedures, as well as arbitration and the provision of advisory services to prevent and settle conflicts. His practice encompasses actions against misconduct in public office related to: bidding processes; civil actions of public interest concerning environmental matters, as well as competition and consumer law; and judicial procedures related to corporate litigation, civil liability, law of obligations, and rights of personality and media. He further engages in administrative procedures before the Brazilian Prosecution Office, Securities Commission, Central Bank, National Financial System Appeal Council and the Foundation for Consumer Protection and Defence. He has experience in managing crises and emergencies, assisting in the drawing up of action plans and judicial and extrajudicial performance strategies.

Machado Meyer Sendacz e Opice Advogados Tel: +55 11 3150 7691 Rua José Gonçalves de Oliveira, nº 116, 5º andar Email: [email protected] Ed. Seculum II URL: www.machadomeyer.com.br Itaim Bibi, São Paulo, SP, 01453-050 Brazil

Ariana Júlia de Almeida Anfe is a senior lawyer in the litigation and arbitration department. She is a specialist in civil litigation and arbitration, with emphasis on product liability cases and corporate litigation. She holds a Master’s degree in Civil Procedure from the University of São Paulo and an LL.M. degree from the London School of Economics. Her academic research focused on judicial precedents and the management of recurrent cases.

Machado Meyer Sendacz e Opice Advogados Tel: +55 11 3150 7734 Rua José Gonçalves de Oliveira, nº 116, 5º andar Email: [email protected] Ed. Seculum II URL: www.machadomeyer.com.br Itaim Bibi, São Paulo, SP, 01453-050 Brazil

We have been building our history for 48 years, inspired by sound ethical principles, the technical skills of our professionals, and a close relationship with our clients. We are ranked as one of the major law firms in Brazil, with over 700 professionals. Our focus: business. We provide innovative legal solutions that anticipate scenarios and make business possible. In other words, we work to offer intelligent legal solutions that contribute to the business growth of our clients and transform realities. Our human capital qualifies and helps us to serve large Brazilian and multinational companies, including eight of the 10 largest Brazilian groups. We are always working to establish a partnership that is built with day-to-day interaction, empathy and commitment to our clients and employees. Since we believe that excellence is the result of hard work and dedication, we are recognised by leading legal publications and have received some of the most prestigious industry awards in Brazil and worldwide. We invest in valuing diversity with our talent attraction, training, development and retainment programme. We have a Citizenship Committee to plan actions in support of various social and cultural projects. www.machadomeyer.com.br

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China China

Boss & Young, Attorneys-at-Law Dr. Xu Guojian

12 Country Finder The Arrangement on Reciprocal 1.1 Please set out the various regimes applicable to Recognition and recognising and enforcing judgments in your jurisdiction Enforcement of and the names of the countries to which such special Judgments in Civil regimes apply. and Commercial Matters by the Courts of the Hong Kong Special Applicable Law/ Relevant Corresponding Mainland and of the Administrative Statutory Regime Jurisdiction(s) Section Below Hong Kong Special Region of the Administrative Section 3. Civil Procedure People’s Republic Law of the People’s Region Pursuant of China (“Hong Republic of China to Choice of Kong SAR”). (“CPL”) and Court Agreements Interpretations Between Parties of the Supreme Jurisdictions which Concerned People’s Court have no treaty with Section 2. 2008 (“Chinese on Applicability China. Mainland– of the Civil Hong Kong SAR Procedure Law Arrangement Zhu Shi [2015] No 2008”). 5 (“SPC Judicial The Arrangement Interpretation”). between the 34 Bilateral Mainland and Treaties between Macau Special China and another Administrative Country (France, Region on Macau Special Italy, Russia, the Mutual Administrative Acknowledgment Region of the Ukraine, Spain, Section 3. Hungary, Morocco, and Enforcement People’s Republic Jurisdictions which United Arab of Civil and of China (“Macau have concluded Emirates, Brazil, Commercial SAR”). bilateral trea- Poland, Mongolia, Judgments 2006 ties with China Belarus, Argentina, (“Chinese with special provi- Viet Nam, Mainland– sions governing Turkey, Egypt, Section 3. Macau SAR the recognition Greece, Cyprus, Arrangement”). and enforcement Kazakhstan, of foreign judg- The Provisions Romania, Bulgaria, ments in civil of the Supreme Cuba, Kyrgyzstan, and commercial People’s Court on Tajikistan, matters. Recognition and Uzbekistan, Tunisia, Enforcement of the Peru, Algeria, Civil Judgments Taiwan Region. Section 3. Kuwait, Bosnia- of Courts of the Herzegovina, Taiwan Region Ethiopia, Laos, 2015 (“Chinese Lithuania and the Mainland– DPRK). Taiwan Region Provisions”).

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22 General Regime and obligations determined in the foreign judgments have been confirmed by the domestic court. The enforcement of foreign judgments is the procedure with which the domestic court 2.1 Absent any applicable special regime, what is the compels the parties to enforce the foreign judgment by using its legal framework under which a foreign judgment would coercive force. Therefore, the recognition is the prerequisite for be recognised and enforced in your jurisdiction? enforcement, and the enforcement is the result of recognition. In judicial practice of China, the parties may apply for recogni- Where there are no bilateral and multilateral agreements, a tion and enforcement at the same time, or apply for recognition foreign judgment in civil and commercial matters may generally or enforcement respectively. be recognised and enforced in China under the principle of reciprocity in accordance with Civil Procedure Law of the People’s Republic of China (“CPL”) and Interpretations of the Supreme 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. People’s Court on Applicability of the Civil Procedure Law Zhu Shi [2015] No 5 (“SPC Judicial Interpretation”). The general procedure for recognising and enforcing a foreign judgment in China shall include the following steps: 2.2 What constitutes a ‘judgment’ capable of Firstly, an application shall be submitted to the intermediate recognition and enforcement in your jurisdiction? people’s court with jurisdiction under CPL, which is accompanied by the original or a certified true copy of the foreign judg- A “judgment” to be recognised and enforced in China shall refer ment and its Chinese translation (if not). The applicant to the to the effective legal documents such as judgments or rulings domestic court for recognition and enforcement of a foreign made by foreign courts in civil and commercial cases or in judgment shall be the parties or the foreign court under CPL criminal cases concerning the payment of a certain amount of unless otherwise specified in the bilateral treaties. money by one party to the other party. Secondly, after accepting the recognition or/and enforcement application, the court with jurisdiction under CPL shall serve 2.3 What requirements (in form and substance) must the application to the respondent and then examine the applica- a foreign judgment satisfy in order to be recognised and tion with or without a full oral hearing determined by the court. enforceable in your jurisdiction? Finally, if the court considers that the foreign judgment meets the conditions for recognition after trial, it shall make a written In form, a foreign judgment to be recognised and enforced in order to recognise that the foreign judgment has legal effect in China shall be the original or certified true copy of the legally China; if it needs to be enforced, an enforcement order shall be effective judgment made by the foreign court with an applica- issued and the enforcement shall be carried out in accordance tion in Chinese; if the civil and commercial judgments and other with CPL on the enforcement of domestic judgments. If, after documents submitted by the applicant are in a foreign language, trial, it is found that the conditions for recognition are not met, they shall be accompanied by a Chinese translation with the the foreign judgments shall not be recognised or enforced. seal of the translation agency and the signature of the translator. Documents formed outside China shall go through the 2.7 On what grounds can recognition/enforcement of a notarisation and certification procedures according to law, or judgment be challenged? When can such a challenge be perform the corresponding certification procedures according made? to the judicial assistance treaties signed by the related country. In substance, the judgment must be effective, not be subject A foreign judgment to be recognised and enforced can be chal- to appeal at any adjudicatory level and not be contrary to the lenged in case of any of the following circumstances: basic principles of the laws, sovereignty, security or public inter- (1) The foreign court that makes the judgment has no jurisdic- ests of China (Article 281, CPL). tion over the case. (2) According to the law of the country where the foreign 2.4 What (if any) connection to the jurisdiction is court making the judgment is located, the respondent has required for your courts to accept jurisdiction for not been legally summoned, or the party without litigation recognition and enforcement of a foreign judgment? capacity has not been properly represented. (3) The judgment is obtained through fraud and bribery. There does not exist any specific connection with Mainland (4) The Chinese court has made a judgment on the same China for recognition and enforcement of a foreign judgment dispute, or is trying the case before the court making the under CPL. Normally in the event that the debtor of the foreign judgment; or the courts of Hong Kong SAR, Macau SAR, judgment is resident of or has domicile or property in Mainland Taiwan Region or a third country have made a judgment China, the general principles to recognise and enforce a judg- on the same dispute, which has been recognised by the ment shall be applied. Chinese court. (5) The recognition and enforcement of the judgment will violate the basic principles of the laws of the People’s 2.5 Is there a difference between recognition and Republic of China or the sovereignty, security and public enforcement of judgments? If so, what are the legal interests of the state. effects of recognition and enforcement respectively? (6) Other situations stipulated by the laws of China. The limitation period of two years shall apply to the recogni- In China, the recognition of judgments and the enforcement of tion and enforcement of a foreign judgment, unless otherwise judgments are two different and closely related procedures. The specified in applicable bilateral treaties. recognition of judgments means that the foreign judgments have the same legal effect as the domestic judgments, and the rights

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2.8 What, if any, is the relevant legal framework still a judgment of a foreign court. The general rules applicable applicable to recognising and enforcing foreign to the recognition and/or enforcement of foreign judgments will judgments relating to specific subject matters? apply.

In case that the foreign court making divorce judgments has a 2.12 Are there any differences in the rules and mutual assistance with China under bilateral treaties, the related procedure of recognition and enforcement between foreign judgment shall be recognised and enforced in accord- the various states/regions/provinces in your country? ance with the provisions of the agreement. Please explain. When there is no mutual legal assistance agreement, the parties concerned may apply to the People’s Court for recognition of the The laws on recognition and enforcement of foreign judgments, divorce judgment of the foreign court according to the Provisions mostly CPL and SPC Judicial Interpretation, are uniformly appli- of the Supreme People’s Court on the Procedure for the Application cable throughout Mainland China. Hong Kong, Macau and for Recognition of Divorce Judgements of Foreign Courts and the Taiwan are each regarded as a separate jurisdiction and have their Provisions of the Supreme People’s Court on the Issues Concerning own rules. the People’s Court’s Acceptance of Applications for Recognition of Divorce Judgement Cases of Foreign Courts. The Arrangement on Reciprocal Recognition and Enforcement 2.13 What is the relevant limitation period to recognise of Civil Judgments in Matrimonial and Family Cases by the Courts and enforce a foreign judgment? of the Mainland and of the Hong Kong Special Administrative Region has been signed on 20 June 2017 (“Chinese Mainland– Under CPL (Article 239) and SPC Judicial Interpretation Hong Kong SAR Arrangement 2017”), which aims to ensure (Article 547), the limitation period for applying for enforcement that parties in the Hong Kong SAR and Chinese Mainland can of a foreign judgment is two years unless otherwise specified in enforce relevant civil judgments in matrimonial and family cases bilateral treaties. through a clear and effective legal regime. However, the Chinese Mainland–Hong Kong SAR Arrangement 2017 has not yet 32 Special Enforcement Regimes Applicable entered into force in China and Hong Kong SAR. to Judgments from Certain Countries

2.9 What is your court’s approach to recognition and 3.1 With reference to each of the specific regimes enforcement of a foreign judgment when there is: (a) a set out in question 1.1, what requirements (in form conflicting local judgment between the parties relating and substance) must the judgment satisfy in order to to the same issue; or (b) local proceedings pending be recognised and enforceable under the respective between the parties? regime?

The Chinese courts may refuse the recognition and enforcement The general form requirement is that the judgment shall be a of a foreign judgment in case that the domestic court has made conclusive determination to substantive matter(s), irrespective a judgment on the same dispute, or is trying the case before the of its name or form. court making the judgment. (1) Bilateral Treaties All the treaties require that the foreign judgment shall 2.10 What is your court’s approach to recognition and be legally effective and final under the law of the enforcement of a foreign judgment when there is a judgment-rendering state. conflicting local law or prior judgment on the same or a (2) Chinese Mainland–Hong Kong SAR Arrangement 2008 similar issue, but between different parties? For a Hong Kong judgment to be recognised and enforced in Mainland China: As Chinese courts will not review the substance of a foreign a. The Hong Kong judgment must be in relation to a judgment when examining an application to recognise and commercial contract entered into after 1 August 2008. enforce foreign judgments, it is unlikely that a foreign judgment b. The commercial contract to which the judgment will be refused recognition and enforcement simply because relates must provide for the exclusive jurisdiction of there is a conflicting local law, unless such foreign judgment is the Hong Kong courts. contrary to Mainland China’s public policy. c. The Hong Kong judgment must be final and require the There is no provision in CPL or SPC Judicial Interpretation payment of a sum of money in a civil or commercial case. regulating recognition or enforcement of a foreign judgment when d. Recognising and enforcing the Hong Kong judgment there is a prior judgment on the same or a similar issue, but between is not against the public interests of Mainland China. different parties. However, if the foreign judgment is in essence in (3) Chinese Mainland–Macau SAR Arrangement conflict with the prior Chinese effective judgment, there is risk that For a Macau judgment to be recognised and enforced in the foreign judgment will be refused recognition and enforcement. Mainland China: Under Article 282 of CPL, a foreign judgment will not be a. The judgment shall be effective, and rendered in a civil recognisable or enforceable in Mainland China if its recogni- or commercial case, including civil labour disputes, or tion or enforcement contravenes the fundamental principles of is related to civil damages involved in criminal cases. Chinese law. b. The judgment provides for subject matter(s) to be given, i.e., payment of money or in kind, or if there is no subject matter to be given or the enforcement is not required 2.11 What is your court’s approach to recognition and otherwise, the applicant may apply for recognition only. enforcement of a foreign judgment that purports to apply the law of your country? c. The recognition and enforcement of the judgment is not contrary to the basic principles of law or public interests of Mainland China. A foreign judgment that purports to apply the law of China is

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(4) Chinese Mainland–Taiwan Region Provisions If the party against whom the application is filed has prop- For a Taiwan judgment to be recognised and enforced in erty in both jurisdictions, the applicant may file an appli- Mainland China, the judgment shall be civil in nature and cation for recognition and enforcement with the court effective. of either jurisdiction. After the court of one jurisdiction enforces but fails to fully enforce the judgment, the applicant may apply for recognition and enforcement with the 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference court of another jurisdiction for any part not fulfilled. between recognition and enforcement? If so, what is the An application for recognition and enforcement shall be difference between the legal effect of recognition and accompanied with the duplicate of the judgment or the certi- enforcement? fication by the judgment-rendering court, and the following documents issued by the judgment-rendering court or the Recognition vests in foreign judgments the same legal force competent institution that can prove the following matters and effect as that of Chinese judgments. Enforcement entails unless these matters have been proved by the judgment: compulsory measures against the judgment debtor if the debtor a. The party against whom the recognition and enforce- does not fulfil the judgment. ment is sought was duly summoned. Neither the Hong Kong Arrangement nor the Macau b. The party with no legal capacity to partake in litigation Arrangement specifies any difference between recognition and had proper representation. enforcement of Hong Kong/Macau judgments in Mainland China. c. The judgment has been served on the parties according Under the Taiwan Provisions, there is a requirement that an to the law of the place where the judgment is rendered applicant must apply either for recognition of a Taiwan judg- and has come into effect. ment prior to seeking enforcement thereof, or alternatively d. Identification documents of the applicant. for both recognition and enforcement in the same application e. The certification issued by the judgment-rendering (Article 3, Taiwan Provisions). court to state the enforcement status of the judgment. Before or after a Chinese court accepts an application for recognition and enforcement, it may, upon the application 3.3 With reference to each of the specific regimes set of the applicant, take interim measures against the prop- out in question 1.1, briefly explain the procedure for erty of the judgment debtor. recognising and enforcing a foreign judgment. After a Chinese court has made its decision on whether to recognise and enforce the Macau judgment, or has a made (1) Bilateral Treaties a ruling during the enforcement procedure, a party may Bilateral treaties generally require the following to be apply to the higher court for reconsideration or remedies. submitted together with the application for recognition (4) Chinese Mainland–Taiwan Region Provisions and enforcement: An application for recognition of a Taiwan judgment shall a. duplicate of the judgment and proof of effectiveness be lodged with the intermediate people’s court either at thereof if it is not specified in the judgment; and the place where the judgment creditor or judgment debtor b. proof of due service on the respondent against is domiciled or habitually resides, or where the judgment whom recognition and enforcement of the judgment debtor’s properties are located. is sought, and proof of proper representation, if the The applicant must file a written application, the original respondent was of civil incapacity. of the judgment, and the original or certified true copy of Except for as provided in the treaties, procedures of recog- the certificate concerning the judgment, the documentary nition and enforcement are subject to the domestic proce- proof that the Taiwan judgment is true and legally effec- dural rules. tive and in the event of a default judgment, the documen- (2) Chinese Mainland–Hong Kong SAR Arrangement 2008 tary proof that the party against whom the recognition is An application for recognition and enforcement of a sought was duly summoned in the litigation. Hong Kong judgment shall be filed with the intermediate Where the court decides not to accept the application people’s court at the place where the judgment debtor is because the above-mentioned conditions are not met, the domiciled or habitually resides or where the judgment applicant may appeal against the decision. debtor’s properties are located. Before or after the court accepts an application for recogni- The applicant must file a written application, a copy of the tion, it may, upon the request of the applicant, take interim judgment affixed with the seal by the judgment-rendering measures against the property of the judgment debtor. court, a certificate issued by the Hong Kong court After the court has made its decision of whether to recog- confirming that the judgment is final and the applicant’s nise and enforce the Taiwan judgment, a party may apply identification documents. to the higher court for reconsideration. Before or after accepting an application for recognition and enforcement, the court may, if the applicant so 3.4 With reference to each of the specific regimes set requests, order an attachment of property or take other out in question 1.1, on what grounds can recognition/ compulsory measures against the judgment debtor. enforcement of a judgment be challenged under the After a Chinese court has made its decision of whether to special regime? When can such a challenge be made? recognise and enforce the Hong Kong judgment, a party may apply to the higher court for reconsideration. (1) Bilateral Treaties (3) Chinese Mainland–Macau SAR Arrangement Grounds to challenge recognition and enforcement of a An application for recognition and enforcement of a Macau judgment under bilateral treaties generally include: judgment shall be filed with the intermediate people’s (a) The judgment is not legally effective. court at the place where the judgment debtor is domiciled For example, as reported by SPC in previous cases, or habitually resides or where the judgment debtor’s prop- the foreign judgment is ineffective because it fails to erties are located.

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be properly served and contravenes Mainland China’s Chinese court, a court of a different jurisdiction or an reservation to the Hague Service Convention or the arbitral tribunal, and such judgment or arbitral award bilateral treaty to which Mainland China is a party. has been recognised or enforced by a Chinese court. (b) The judgment-rendering court does not have jurisdic- (g) The Chinese court considers that the recognition and tion over the case to which the judgment is rendered. enforcement of the Hong Kong judgment is contrary Generally, there are three types. Type 1 simply requires to the social or public interests of Mainland China. the foreign judgment not to be within the exclusive In judicial practice, a Hong Kong judgment may also jurisdiction of the recognising and enforcing state. be declined recognition and enforcement if the judg- Type 2 requires the judgment-rendering court to have ment is not final, or the time limit of two years to apply complied with the jurisdiction requirements of the for the recognition and enforcement has expired, or recognising and enforcing state. Type 3 sets out a the judgment is not one that requires the payment of a laundry list of acceptable jurisdictional bases, which, sum of money in a civil or commercial case. however, are still subject to the exclusive jurisdiction of (3) Chinese Mainland–Macau SAR Arrangement (Article 11) the recognising and enforcing state. The grounds for refusing recognition and enforcement of (c) The proceedings of the judgment violate due process a Macau judgment include: requirements. (a) The judgment relates to a subject matter in respect of Most of the bilateral treaties provide that the defendant which the Chinese courts have exclusive jurisdiction must have been summoned if absent from the proceed- according to Chinese law. ings, and the defendant lacking legal capacity must have (b) There is ongoing litigation in Chinese courts commenced been duly represented in the proceedings. There are prior to the issuance of the Macau judgment and the also treaties providing for an additional requirement; Chinese courts have jurisdiction over the ongoing namely, the defendant has been provided with the litigation. opportunity to properly defend itself in the litigation. (c) A judgment or arbitral award has been rendered on the (d) There are parallel judgments or proceedings. same subject matter by a court or an arbitral tribunal, Most of the bilateral treaties provide that recogni- and such judgment or arbitral award has been recog- tion or enforcement may be rejected if the recognising nised or enforced by a Chinese court. and enforcing state has already made a judgment, (d) The party against whom the Macau judgment was has an ongoing proceeding, or has enforced a judg- rendered had not been duly summoned or was not ment from a third country between the same parties properly represented in the Macau proceedings. and the subject matter of which is the same. Under (e) According to the laws of the place where the judgment some treaties, to refuse recognition and enforcement is rendered, the judgment is not legally effective or its on the ground of ongoing parallel proceedings, such enforcement has been stayed for retrial. ongoing proceedings must be initiated prior to the one (f) Recognition and enforcement of the Macau judgment which rendered the judgment seeking recognition or is contrary to the principles of Chinese law or the enforcement. social or public interests of Mainland China. (e) The judgment is contrary to the public policy of the In judicial practice, a Macau judgment may also be recognising and enforcing state. declined recognition or enforcement if the time limit of SPC has at least confirmed one situation in this regard. two years to apply for the recognition and enforcement Service of judicial documents by way of post in viola- has expired, or the judgment is not rendered in a civil or tion of the applicable Hague Service Convention or commercial case or related to civil damages involved in the bilateral treaty is regarded as contrary to China’s criminal cases. judicial sovereignty. (4) Chinese Mainland–Taiwan Region Provisions (Article 15) (f) Other grounds. For example, the application has The grounds for refusing recognition of a Taiwan judg- exceeded the time limit of two years. ment include: (2) Chinese Mainland–Hong Kong SAR Arrangement 2008 (a) The party against whom the Taiwan judgment is (Article 9) rendered was not duly summoned in the event of a The grounds for refusing recognition and enforcement of default judgment, or was not duly represented where a Hong Kong judgment include: the party lacked legal capacity to partake in litigation. (a) There is no written agreement that provides for the (b) The judgment relates to a subject matter in respect of exclusive jurisdiction of the Hong Kong court, or the which the Mainland Chinese courts have exclusive choice of court agreement providing for the exclusive jurisdiction. jurisdiction of the Hong Kong courts is invalid under (c) The parties have entered into an effective arbitration Hong Kong law. agreement over the dispute to which the judgment relates (b) The judgment has been fully satisfied. and there is no circumstance under which the jurisdiction (c) The judgment relates to a subject matter in respect of conferred by the arbitration agreement has been waived. which the Chinese courts have exclusive jurisdiction (d) A judgment or arbitral award has been rendered over under Chinese law. the same dispute by a Mainland Chinese court or arbi- (d) The party who was absent from the court hear- tral tribunal in Mainland China. ing(s) and against whom the Hong Kong judgment is (e) A judgment has been rendered by a court in Taiwan, rendered has not been summoned according to Hong Hong Kong, Macau or a foreign country over the same Kong law, or had been summoned according to Hong dispute and the judgment has been recognised by a Kong law but had not been given the time to defend Mainland Chinese court. itself as required by law. (f) An arbitral award has been rendered by an arbitral (e) The judgment has been obtained by fraud. tribunal in Taiwan, Hong Kong, Macau or a foreign (f) A judgment or arbitral award has been rendered on country over the same dispute and the arbitral award the same subject matter between the same parties by a has been recognised by a Mainland Chinese court.

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(g) Recognition of the judgment is contrary to the prin- (4) Compulsory eviction of the judgment debtor from building ciples of Mainland Chinese law including the “One or land (Article 250, CPL). China” principle or the social or public interests of (5) Transfer of licences or certificates conferring rights on the Mainland China. judgment debtor (Article 251, CPL). According to judicial practice, a Taiwan judgment may (6) Imposition of restrictions on the judgment debtor by, for also be declined recognition and enforcement if the example, informing the relevant government departments judgment is not authentic and effective, or the time to restrict the judgment debtor from leaving Mainland limit of two years to apply for the recognition and China and recording the judgment debtor’s failure to enforcement has expired. In another case, an interme- perform its obligations under the judgment in the credit diate people’s court ruled that a Taiwan judgment was reference system maintained by the People’s Bank of not effective because the applicant did not submit the China (Article 255, CPL). original or a certified true copy of the judgment to the (7) And a media announcement of the judgment debtor’s court for verification. failure to perform its obligations under the judgment (Article 255, CPL). 42 Enforcement 52 Other Matters 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement 5.1 Have there been any noteworthy recent (in the available to a judgment creditor? last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. If a Chinese court accepts an application for recognition and enforcement of a foreign judgment in Mainland China, it can order any of the following: No, there have not been any noteworthy recent legal develop- (1) An enquiry into the assets of the judgment debtor in ments. Mainland China by: (a) compelling the judgment debtor to disclose its assets; 5.2 Are there any particular tips you would give, or (b) making enquiries with the relevant authorities or critical issues that you would flag, to clients seeking organisations for information concerning the judg- to recognise and enforce a foreign judgment in your ment debtor’s assets; and/or jurisdiction? (c) ordering a search of the residence or office premises of the judgment debtor and any other places where A default judgment may be recognised and enforced only if the its assets might be kept (Articles 242 and 248, CPL applicant (judgment creditor) can submit documents proving and Article 34, SPC’s Interpretations on Questions that the judgment debtor was duly served or the judgment regarding Application of the Enforcement Procedure expressly stated the fact of proper service in China, thus impor- under the Civil Procedure Law). tant attention shall be paid to the due service requirement. (2) Sealing up, seizure, freezing or appropriation of the assets of the judgment debtor (Articles 242, 244 and 245, CPL). (3) Sale of the judgment debtor’s assets through auction (Articles 242, 244 and 247, CPL).

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Dr. Xu Guojian studied law in China, Switzerland, the Netherlands and Germany and concluded his doctoral studies at Hamburg University, and was awarded the title Dr. Juris in 1994. Dr. Xu is an expert in the settlement of international commercial disputes. As counsel and arbitrator, he has participated in the settlement of hundreds cases of commercial disputes. He participated in the 20th Diplomatic Session of the Hague Conference of Private International Law as a member of the Chinese delegation to negotiate and adopt the 2005 Hague Convention on the Agreement on Choice of Courts. Furthermore, he has been a delegate of China in four Special Commission meetings in the years of 2016, 2017 and 2018 and the 22nd Diplomatic Session of the Hague Conference of Private International Law in the year of 2019 to draft and adopt the 2019 Hague Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments. Dr. Xu is a vice-president of the China Society of Private International Law, a member of the Administrative Review Committee of the Shanghai Municipal People’s Government and Distinguished Dean of the School of International Law of Shanghai University of Political Science and Law. He is also an arbitrator of the China International Economic and Trade Arbitration Commission (“CIETAC”), the Shanghai International Arbitration Center (“SHIAC”) and the arbitration commis- sions of cities including Shanghai, Hangzhou and Shenyang. Dr. Xu is fluent in Mandarin Chinese, German and English.

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Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 40 Chapter 8 Croatia Croatia

Macesic and Partners LLC Anita Krizmanic

12 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.

Corresponding Applicable Law/Statutory Regime Relevant Jurisdiction(s) Section Below

General regime for recognition and enforcement of judgments:

(i) Private International Law Act (PILA); and All jurisdictions, unless regulated by EU law Sections 2 and 4. (ii) Enforcement Act (EA). and/or international treaties.

Special regimes for recognition and enforcement of judgments:

(i) Multilateral treaties: All Signatory States and Parties to the a. Hague Convention of 1 March 1954 on Civil Procedure. Section 3. Convention.

b. Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and All Signatory States and Parties to the Section 3. Co-operation in Respect of Parental Responsibility and Convention. Measures for the Protection of Children. c. Hague Convention of 23 November 2007 on the All Signatory States and Parties to the International Recovery of Child Support and Other Forms Section 3. Convention. of Family Maintenance. d. Convention on Jurisdiction and the Recognition and EU Member States, Iceland, Norway and Enforcement of Judgments in Civil and Commercial Section 3. Switzerland. Matters of 10 June 2007 (Lugano Convention). e. Convention on the Contract for the International All Signatory States and Parties to the Section 3. Carriage of Goods by Road (CMR) of 19 May 1956. Convention. f. Convention Concerning International Carriage by Rail All Signatory States and Parties to the Section 3. (COTIF) of 9 May 1980. Convention.

Austria (regarding maintenance obligations), Belgium (regarding maintenance obligations), (ii) Bilateral treaties concluded between the Republic of Bosnia and Herzegovina, Bulgaria, the Czech Section 3. Croatia and other Sovereign States. Republic, France, Greece, North Macedonia, Poland, Romania, the Russian Federation, Slovakia, Slovenia and Turkey.

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22 General Regime (i.vii) if the court established jurisdiction contrary to the provisions of Chapter II, Sections 3 (Jurisdiction in matters related to insurance), 4 (Jurisdiction over consumer 2.1 Absent any applicable special regime, what is the contracts) and 5 (Jurisdiction over individual contracts legal framework under which a foreign judgment would of employment) of Regulation (EU) No. 1215/2012 of be recognised and enforced in your jurisdiction? 12 December 2012 (Art. 69 para. 3 PILA). (ii) Positive requirement – A foreign judgment shall be recog- Recognition and enforcement of a foreign court judgment is nised if the applicant seeking recognition of the judgment generally regulated by PILA and EA, unless regulated by EU provides confirmation from the competent foreign court law and/or international treaties. or another competent agency that the judgment is final under the laws of the country of origin. If the judgment 2.2 What constitutes a ‘judgment’ capable of is also subject to enforcement, confirmation from the recognition and enforcement in your jurisdiction? competent foreign court or other competent agency that the judgment is enforceable under the laws of the country A “judgment” capable of recognition and enforcement is a of origin is also required (Art. 67 PILA). foreign court decision in a civil matter finally resolving a dispute between the parties. “Civil matters” include matters of personal 2.4 What (if any) connection to the jurisdiction is status, family and property matters as well as any other substan- required for your courts to accept jurisdiction for tive matters. recognition and enforcement of a foreign judgment? Under the provisions of PILA, the term “foreign court decision” includes: According to PILA, no connection to the jurisdiction is required (i) decisions of a foreign court; for Croatian courts to accept jurisdiction for recognition and (ii) settlements reached before a foreign court (court settle- enforcement of a foreign judgment. ments); and (iii) decisions of other foreign State agencies which are considered equal to court decisions or court settlements in the 2.5 Is there a difference between recognition and State of that decision’s origin, provided that the decision enforcement of judgments? If so, what are the legal regulates “private law matters with international attrib- effects of recognition and enforcement respectively? utes” (Arts 1 and 66 PILA). Only a condemnatory judgment ordering the defendant to carry In Croatian law, there is a difference between recognition and out, undergo or refrain from a specific action may be enforced. A enforcement of judgments. judgment regulating rights only (declarative or constitutive judgment or award) does not require enforcement and is therefore not Recognition enforceable. A foreign judgment recognised by a Croatian court is equal to a domestic judgment and has legal effect in Croatia (Art. 66 para. 2.3 What requirements (in form and substance) must 1 PILA). a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Enforcement Enforcement entails a compulsory fulfilment of claims through According to PILA, a judgment must satisfy the following posi- enforcement actions prescribed by EA on various objects of tive (must exist) and negative requirements (must not exist) in enforcement (real estate, movable assets, monetary claims, etc.) order to be recognised and enforced. based on enforceable or certified documents (court judgments, (i) Negative requirements – a foreign judgment shall not be court settlements, arbitral awards, etc.). recognised: According to the law and court practice, enforcement based (i.i) if the Croatian court or other agency has exclusive on a foreign judgment may be ordered and conducted in Croatia competence over the matter (Art. 69 para. 1 PILA); provided that the judgment satisfies all requirements for its (i.ii) if it is determined that the person, against which the recognition (see question 2.3 above) or if such a possibility is judgment was rendered, was prevented from taking prescribed by law, an international treaty or EU law directly part in the proceedings due to procedural irregularities applicable in Croatia (Art. 19 EA). (determined only upon the objection of the opposing party) (Art. 68 PILA); 2.6 Briefly explain the procedure for recognising and (i.iii) if it is contrary to the ordre public of the Republic of enforcing a foreign judgment in your jurisdiction. Croatia (Art. 71 PILA); (i.iv) if a final decision on the same matter between the same parties has already been reached by a Croatian The motion for recognition is filed with the competent court court (Art. 70 para. 1 PILA); (Art. 72 para. 1 PILA). (i.v) if another foreign court decision was reached on the PILA prescribes neither the form of the motion nor the neces- same matter between the same parties and the said sary documentation supporting the motion for recognition. foreign court decision became final earlier and has According to court practice, the motion must include personal already been recognised or is suitable to be recognised information about the applicant and the opposing party, infor- in the Republic of Croatia (Art. 70 para. 1 PILA); mation about the judgment as well as any other information (i.vi) if the court established jurisdiction exclusively based necessary for the court to resolve the matter. Pursuant to the on the defendant’s location or the location of the provisions of PILA, the motion must be supported by a confir- defendant’s assets in the State of the court, and said mation of finality of the judgment in the country of its origin. presence is not directly linked with the proceedings’ Therefore, the following is to be submitted to the competent merits (Art. 69 para. 2 PILA); and Croatian court:

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(i) the original foreign judgment; 2.8 What, if any, is the relevant legal framework (ii) a confirmation from the competent foreign court or other applicable to recognising and enforcing foreign competent agency that the judgment is final under the laws judgments relating to specific subject matters? of that country; (iii) a certified translation of the judgment into the Croatian In Croatian law, there is no legal framework applicable to recog- language; nition and enforcement of foreign judgments relating to specific (iv) if the judgment is based on the absence of the defendant subject matters, apart from special regimes set out in interna- before the court, a confirmation from the foreign court tional treaties and EU law (see section 3 below). that the defendant was duly summoned to participate in the proceedings; (v) power of attorney if the applicant is represented by an 2.9 What is your court’s approach to recognition and attorney; enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating (vi) a copy of the certificate of citizenship (of the applicant); and to the same issue; or (b) local proceedings pending (vii) court taxes. between the parties? During the proceedings the court will determine whether the judgment satisfies the requirements prescribed for its recognition (see question 2.3 above). (a) A foreign judgment shall not be recognised if a final court The court decides on the recognition of the judgment via a decision on the same matter between the parties has already court order. The parties may appeal the order. been reached by a Croatian court (Art. 70 para. 1 PILA). If a foreign judgment is not already recognised by a final court (b) If proceedings on the same matter initiated earlier between order issued in recognition proceedings, any court in Croatia the parties are pending before a Croatian court, the court may decide on the recognition of a foreign judgment as a prelim- deciding on recognition will order the stay of proceedings inary issue during other court proceedings; however, such recog- until the pending court proceedings are finalised (Art. 70 para. nition has legal effect only within those particular proceedings 2 PILA). (Art. 72 para. 3 PILA). If the foreign judgment is final and enforceable, the motion 2.10 What is your court’s approach to recognition and for recognition and enforcement of the judgment may be filed enforcement of a foreign judgment when there is a with the competent court (Art. 71 para. 1 PILA). In that case, conflicting local law or prior judgment on the same or a the confirmation from the competent foreign court or other similar issue, but between different parties? competent agency that the judgment is enforceable under the laws of the country of origin must be submitted. (a) PILA does not prescribe the effect of a conflicting law After the judgment is recognised in the Republic of Croatia, to recognition and enforcement of a foreign judgment. the foreign judgment is considered equal to a domestic judgment However, in such cases the foreign judgment may not be (see question 2.5 above). The enforcement of the judgment is recognised if the court finds the judgment is contrary to then ordered and conducted in accordance with EA. the ordre public of the Republic of Croatia. The motion for enforcement of the judgment must include a (b) PILA does not prescribe the effect of a conflicting prior reference to the judgment for which the enforcement is sought. judgment on the same or similar issue between different The original foreign judgment supported by a confirmation parties to recognition and enforcement of a foreign judg- from the Croatian court on recognition of the judgment and a ment. In recognition proceedings the court only deter- certified translation of the judgment into the Croatian language mines if requirements for recognition are met (see ques- must be submitted with the motion. tion 2.3 above) and, if they are, the foreign judgment If the motion is found to have grounds and it is supported by should be recognised and enforced by the Croatian court. all necessary documentation, the court will issue an Enforcement Order. The parties may appeal the Enforcement Order. 2.11 What is your court’s approach to recognition and Enforcement based on a foreign judgment may also be ordered enforcement of a foreign judgment that purports to and conducted based on a foreign judgment without conducting apply the law of your country? recognition proceedings, provided that the judgment fulfils all requirements for its recognition or if such possibility is prescribed by law, an international treaty or EU law directly applicable in PILA does not prescribe the effect of a foreign judgment Croatia (Art. 19 EA). According to the law and court practice, the applying Croatian law to its recognition and enforcement. If court then decides about the recognition of a foreign judgment the foreign judgment satisfies all of the prescribed requirements as a preliminary issue with legal effect only within enforcement (see question 2.3 above), it should be recognised and enforced by proceedings (Art. 71 para. 3 PILA) (see question 2.5 above, under the Croatian court. “Recognition”). 2.12 Are there any differences in the rules and procedure of recognition and enforcement between 2.7 On what grounds can recognition/enforcement of a the various states/regions/provinces in your country? judgment be challenged? When can such a challenge be Please explain. made?

Recognition and enforcement of foreign judgments is uniformly The opposing party may challenge recognition and enforcement regulated in the entire country. of a foreign judgment only with regards to the requirements for recognition and enforcement of the foreign judgment, objecting that the requirements were not satisfied (see question 2.3 above).

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2.13 What is the relevant limitation period to recognise COTIF and enforce a foreign judgment? Judgments pronounced by the competent court or tribunal will, when they have become enforceable under the law applied by that court or tribunal, become enforceable in each of the other Member PILA does not prescribe a limitation period for recognition and States on completion of the formalities required in the State where enforcement of foreign judgments; however, claims determined enforcement is sought (Art. 12 para. 1). This also applies to judi- by final court judgments become time-barred after 10 years cial settlements (Art. 12 para. 1) but does not apply to provision- (Art. 233 Civil Obligations Act). ally enforceable judgments, nor to awards of damages in addition to costs against a plaintiff who fails in their action (Art. 12 para. 2). 32 Special Enforcement Regimes Applicable to Judgments from Certain Countries Bilateral treaties All of the bilateral treaties regulate recognition and enforcement 3.1 With reference to each of the specific regimes of court decisions and settlements. set out in question 1.1, what requirements (in form Requirements for recognition and enforcement may be and substance) must the judgment satisfy in order to summed up as follows: be recognised and enforceable under the respective (i) a judgment must be final and enforceable in the country of regime? origin; (ii) in case of decision by default, the summons or court order Hague Convention of 1 March 1954 initiating the proceedings have to be duly and timely deliv- Orders for costs and expenses of the proceedings shall be ered to the losing/absent party (all treaties except with rendered enforceable in the country where enforcement is sought Russia); if, under the law of the country where the judgment was rendered, (iii) a judgment is reached by a competent court (treaties the copy of the judgment fulfils the conditions required for its with Austria, Belgium, the Czech Republic and Slovakia, authenticity, if the decision has the force of res judicata and if the France, Greece, Romania and Russia); and decision is worded in the language of the authority addressed, (iv) the party that was not capable of participating in the agreed language or translated (Art. 19 para. 2). proceedings had to have been duly represented (treaties with Bosnia and Herzegovina, the Czech Republic and Hague Convention of 19 October 1996 Slovakia, France, North Macedonia, Russia, Slovenia and The Convention does not specifically prescribe requirements the Turkey). measures have to satisfy in order to be recognised and enforced. The measures taken by the authorities of a Contracting State 3.2 With reference to each of the specific regimes set shall be recognised by operation of law in all other Contracting out in question 1.1, does the regime specify a difference States (Art. 23 para. 1). If measures taken in one Contracting between recognition and enforcement? If so, what is the State and enforceable there require enforcement in another difference between the legal effect of recognition and Contracting State, they will be declared enforceable in that other enforcement? State according to the procedure provided in the law of the latter State (Art. 26 para. 1). Hague Convention of 1 March 1954 The Convention only governs enforcement (see question 3.1 Hague Convention of 23 November 2007 above). A decision made in one Contracting State (“the State of origin”) shall be recognised and enforced in other Contracting States if Hague Convention of 19 October 1996 requirements prescribed by Art. 20 para. 1 are satisfied. A deci- The Convention differs between recognition and enforcement sion shall be recognised only if it has effect in the State of origin of measures. Measures taken in one Contracting State and and shall be enforced only if it is enforceable in the State of declared enforceable, or registered for the purpose of enforce- origin (Art. 20 para. 6). ment, in another Contracting State shall be enforced in the latter A maintenance arrangement made in a Contracting State State as if they had been taken by the authorities of that State shall be entitled to recognition and enforcement as a decision, (Art. 28). provided that it is enforceable as a decision in the State of origin (Art. 30 para. 1). Hague Convention of 23 November 2007 The Convention specifies a difference between recognition Lugano Convention and enforcement. Decisions that were recognised and declared A judgment given in a State bound by the Convention shall be enforceable may be enforced in the State addressed according to recognised in the other States bound by the Convention without Chapter VI of the Convention. any special procedure being required (Art. 33 para. 1). A judgment given in a State bound by the Convention and enforceable in that Lugano Convention State shall be enforced in another State bound by the Convention The Convention differs between recognition and enforcement when it has been declared enforceable there (Art. 38 para. 1). and ascribes the same effect as in Croatian law.

CMR CMR and COTIF When a judgement entered by a court or tribunal of a contracting The Conventions do not regulate the recognition of judgments, country in legal proceedings arising out of carriage under the only enforcement. Convention (Art. 31 para. 1) has become enforceable in that country, it shall also become enforceable in each of the other Bilateral treaties Contracting States, as soon as the formalities required in the Almost all treaties (except with Bosnia and Herzegovina, North country concerned have been complied with (Art. 31 para. 3). Macedonia, Slovenia and Turkey) differ between recognition

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and enforcement but do not prescribe legal effects, which is procedure for recognition of the country where recognition is similar according to Croatian law. Some of the treaties explicitly sought applies. Therefore, Croatian law applies. prescribe legal effects of recognition or enforcement (Bulgaria, Greece and Poland), which are similar according to Croatian 3.4 With reference to each of the specific regimes set law. out in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the 3.3 With reference to each of the specific regimes set special regime? When can such a challenge be made? out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. Hague Convention of 1 March 1954 The Convention does not specifically prescribe grounds for Hague Convention of 1 March 1954 refusal of enforcement. Enforcement of the order for costs and The order for costs and expenses shall be rendered enforce- expenses might be challenged on the grounds that it does not able without a hearing (Art. 19 para. 1) and without charge by a satisfy the requirements prescribed in Art. 19 para. 2 (see ques- competent authority (Art. 18 para. 1). The competent authority tion 3.1 above). shall ascertain whether the requirements prescribed in Art. 19 para. 2 (see question 3.1 above) are satisfied (Art. 19 para. 2). Hague Convention of 19 October 1996 Recognition, declaration of enforceability or registration of Hague Convention of 19 October 1996 measures may be refused in cases prescribed in Art. 23 para. 2 The recognition and enforcement procedures are governed by and Art. 26 para. 3. the law of the State addressed (Arts 24 and 25). Therefore, Croatian law applies. Hague Convention of 23 November 2007 Recognition and enforcement of a decision or maintenance arrange- Hague Convention of 23 November 2007 ment may be refused in cases prescribed in Art. 22 and Art. 30 para. 4. The procedures for recognition and enforcement are governed by the law of the State addressed (Art. 23 para. 1). Therefore, Lugano Convention Croatian law applies. A judgment shall not be recognised: If the State addressed is unable to recognise or enforce the (1) if such recognition is manifestly contrary to public policy decision in its entirety, it shall recognise or enforce any severable in the State in which recognition is sought; part of the decision which can be so recognised or enforced (Art. (2) where it was given in default of appearance, if the 21). The procedure for a motion for recognition and enforce- defendant was not served with the document which insti- ment is prescribed in Art. 23 paras 2–11. A State may declare, tuted the proceedings or with an equivalent document in accordance with Art. 63, that it will apply the procedure for in sufficient time and in such a way as to enable them to recognition and enforcement set out in Art. 24. arrange for their defence, unless the defendant failed to There shall be no review of the merits of a decision (Art. 28). commence proceedings to challenge the judgment when it Proceedings for recognition and enforcement of a mainte- was possible for them to do so; nance arrangement shall be suspended if a challenge concerning (3) if it is irreconcilable with a judgment given in a dispute the arrangement is pending before a competent authority of a between the same parties in the State in which recognition Contracting State (Art. 30 para. 6). is sought; and (4) if it is irreconcilable with an earlier judgment given in Lugano Convention another State bound by this Convention or in a third A judgment is recognised without any special procedure being State involving the same cause of action and between the required (Art. 33 para. 1). same parties, provided that the earlier judgment fulfils The motion for declaration of enforceability shall be submitted the conditions necessary for its recognition in the State to the court or competent authority indicated in Annex II (Art. addressed (Art. 34). 39 para. 1). The judgment will be declared enforceable after A judgment shall not be recognised if it conflicts with completion of the formalities in Art. 53 without any review Sections 3, 4 or 6 of Title II, or in a case provided for in Art. 68. under Arts 34 and 35 (Art. 41). The declaration of enforcea- Furthermore, a judgment may be refused recognition in any case bility shall be served on the party against whom enforcement provided for in Arts 64(3) or 67(4) (Art. 35 para. 1). is sought, accompanied by the judgment, if not already served With regards to declaration of enforceability, the court with (Art. 42 para. 2). Under no circumstances may the foreign judg- which an appeal is lodged under Arts 43 or 44 shall refuse or ment be reviewed as to its substance (Art. 45 para. 2). revoke a declaration of enforceability only on one of the grounds due to which a judgment shall not be recognised (Art. 45). CMR and COTIF The Conventions do not regulate a procedure for enforcement CMR and COTIF of judgments. A judgment shall become enforceable in each of The Convention does not prescribe grounds for challenging the other Contracting States as soon as the formalities required the enforceability of judgments. A judgment shall become in the country concerned have been complied with (Art. 31 para. enforceable in each of the other Contracting States, as soon as 3 CMR and Art. 12 para. 1 COTIF). the formalities required in the country concerned have been complied with (Art. 31 para. 3 CMR and Art. 12 para. 1 COTIF). Bilateral treaties Therefore, in Croatia it may be challenged on the grounds stated None of the treaties prescribe the procedure for recognition and in question 2.7 above. enforcement. All specifically prescribe that the enforcement law procedure of the country where enforcement is sought applies, Bilateral treaties while some treaties (with Belgium, Bosnia and Herzegovina, Reasons for refusal of recognition and enforcement may be France, North Macedonia, Slovenia, Turkey) prescribe that the summed up as follows:

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(i) The judgment is contrary to the ordre public of the country 42 Enforcement where recognition and/or enforcement is sought. (ii) A final decision on the same matter was reached in the country where recognition and enforcement is sought (all 4.1 Once a foreign judgment is recognised and treaties except with Belgium and France). enforced, what are the general methods of enforcement available to a judgment creditor? Some treaties (with Bulgaria, the Czech Republic and Slovakia, Greece, North Macedonia, Poland, Romania and Russia) prescribe that recognition and enforcement will be According to EA, depending on the type (monetary or non-mon- refused only if the said decision is reached before the judgment etary claim) and the amount, a claim may be fulfilled through whose recognition and enforcement is sought. enforcement actions prescribed by EA on various objects of (iii) If there are pending proceedings initiated prior to the enforcement. The objects of enforcement according to EA judgment on the same matter in the country where recog- are real estate, movable assets, monetary claims, stocks, shares, nition and enforcement is sought (Belgium, Bosnia and securities and other material or property rights. Herzegovina, France, North Macedonia, the Russian Federation and Slovenia) (the treaty with Turkey prescribes 52 Other Matters that proceedings only have to be pending). (iv) If the court of the country where recognition and enforce- 5.1 Have there been any noteworthy recent (in the ment is sought has exclusive jurisdiction on the matter last 12 months) legal developments in your jurisdiction (Bosnia and Herzegovina, Bulgaria, North Macedonia, relevant to the recognition and enforcement of foreign Poland, Slovenia and Turkey). judgments? Please provide a brief description. Treaties with Austria and Belgium prescribe that the decision which was reached in proceedings in which the defendant was in There have been no developments relevant to the recognition absentia and exclusively represented by an appointed representa- and enforcement of foreign judgements in the past year. tive will not be recognised and enforced. Treaties with Belgium and France prescribe that recognition and enforcement will be refused if a decision was reached in a 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking third country on the same matter and requirements for recogni- to recognise and enforce a foreign judgment in your tion and enforcement of the said decision in the country where jurisdiction? recognition and enforcement is sought are satisfied. In certain treaties, some of the above reasons for refusal of recognition and enforcement are prescribed in negative form as Court taxes in recognition and enforcement proceedings are requirements for recognition and enforcement. subject to the value of the claim and range between approx. EUR 100.00 and EUR 1,400.00. All documentation should be translated into the Croatian language by a licensed court interpreter.

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Anita Krizmanic is a Partner at Macesic and Partners LLC, Croatia. Her main areas of practice are dispute resolution/litigation, maritime and transport law, insurance, restructuring and bankruptcy and labour/employment law. She is an experienced lead counsel who acts as a correspondent in domestic and cross-border litigations before courts and arbitral tribunals in complex disputes. Anita has been with the firm for 20 years and is currently the office team leader in her areas of practice. She is a Protection and Indemnity (P&I) Clubs correspondent in Croatia and a regular contributor to a number of publications.

Macesic and Partners LLC Tel: +385 51 215 010 Pod kaštelom 4 Email: [email protected] 51000 Rijeka URL: www.macesic.hr Croatia

Macesic and Partners assists international clients doing business or looking to invest in Croatia. One of the oldest business-law oriented offices in the country, the firm provides expert assistance in complex, cross-border matters and operates through two offices in Zagreb and Rijeka. Traditionally best known for maritime law, Macesic and Partners has become increasingly prominent in other sectors over the last decade – energy, corporate and commercial, financial and, as a recent development, technology. The firm is part of several professional and expert organisations and associations and regularly acts as a local correspondent for numerous international law firms. www.macesic.hr

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England & Wales & Wales England

Louise Freeman

Covington & Burling LLP Shivani Sanghi

12 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 EU Regime* See Chapter 2. EU Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments The Brussels Recast Regulation no longer All Member States of the EU (except in civil and commercial matters (“Brussels applies to the UK from 1 January 2021, Denmark). Recast Regulation”) applicable to legal proceed- though the UK and EU will continue to ings instituted on or after 10 January 2015. apply it in proceedings commenced before 31 December 2020. See Chapter 2. EU Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil The Brussels Regulation no longer applies and commercial matters (“Brussels Regulation”) All Member States of the EU. to the UK from 1 January 2021, though the applicable to judgments given in legal proceedings UK will continue to apply it in proceedings instituted before 10 January 2015. commenced before 10 January 2015. Gibraltar and dependent territories of Brussels Convention, 1978. EU Member States. See question 5.1 below and Chapter 2.

The Lugano Convention no longer applies Convention on jurisdiction and the enforcement to the UK from 1 January 2021, though the of judgments in civil and commercial matters Iceland, Norway and Switzerland. UK courts will continue to apply the Lugano signed in Lugano on 30 October 2007 (“Lugano Convention in proceedings commenced Convention”). before 31 December 2020 (but it is unclear whether Iceland, Norway and Switzerland would take the same approach). See question 5.1 below and Chapter 1. Hague Convention on Choice of Court All Member States of the EU and The UK has acceded to the Hague Agreements (“Hague Convention”). Mexico, Montenegro and Singapore. Convention, as an independent contracting state, effective from 1 January 2021. Statutory Regimes Many Caribbean countries/former British dominions including Bermuda, British Virgin Islands, Cayman Islands; and several African nations Administration of Justice Act 1920 (“AJA”). including Ghana, Kenya, Nigeria, Section 3. Tanzania, Uganda, Zambia and Zimbabwe. Other principal countries include the Republic of Cyprus, Malaysia, Malta and New Zealand.

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Mainly countries in the Commonwealth such as Australia, Canada (except Quebec), Guernsey, India, Isle of Man, Israel, Jersey, Pakistan, Suriname and Tonga, and Foreign Judgments (Reciprocal Enforcement) EU countries with which the UK Section 3. Act 1933 (“FJA”). has existing bilateral treaties for the reciprocal enforcement of judgments (which pre-date Brexit), such as Austria, Belgium, France, Germany, Italy, Netherlands and Norway. General Regime Countries to which none of the above specific statutes/regulations apply including Brazil, China (including English common law regime. Hong Kong), Russia and the USA and Section 2. EU Member States where the Hague Convention or any other bilateral treaty with the UK does not apply.

* Please see Chapter 2 for further information on the EU recog- for the payment of a sum of money in respect of compensation or nition and enforcement regime. The EU Regime has ceased to damages to an injured party. Accordingly, under these two Acts, apply in the UK from 1 January 2021, though there is a run-off as well as at common law, non-money judgments and interim period for a part of the EU Regime for proceedings commenced orders, including injunctions, are not enforceable. before 31 December 2020, as indicated in the table above. The It has recently been confirmed by the English courts that both position for proceedings that are commenced after 1 January the Brussels Recast Regulation and the AJA do not apply to 2021 is set out in Chapter 1. the registration (or enforcement) of judgments which emanate from a non-contracting state. In other words, if a claimant 22 General Regime obtains a money judgment in the courts of a state which it then seeks to enforce under the Brussels Recast Regulation or by 2.1 Absent any applicable special regime, what is the a common law action on the judgment in a second state, the legal framework under which a foreign judgment would judgment obtained in the second state (also known as “a judg- be recognised and enforced in your jurisdiction? ment on a judgment”) cannot be registered for enforcement in the UK pursuant to the Brussels Recast Regulation or the AJA. This is to prevent the practice of “judgment-laundering”, i.e. The recognition and enforcement of foreign judgments in to prevent a judgment given in a state which is not in the EU/ England and Wales which fall outside the scope of the special Commonwealth/has no reciprocal arrangements with the UK, regimes listed above are dealt with under English common law. from being registered in the UK simply by way of an action to The procedure for enforcement of such foreign judgments is enforce that judgment in an intermediate state. set out in Part 74 of the English Civil Procedure Rules (“CPR”).

2.3 What requirements (in form and substance) must 2.2 What constitutes a ‘judgment’ capable of a foreign judgment satisfy in order to be recognised and recognition and enforcement in your jurisdiction? enforceable in your jurisdiction?

In English law, a judgment is considered to be any judgment As noted above, in order for a foreign judgment to be recog- given by a court or tribunal, whatever it may be called. CPR nised and enforced at common law, it must be final, binding 74.2(c) provides that a foreign “judgment” in the context of and conclusive. A foreign judgment is only considered final and enforcement in England includes a decree, an order, a decision, binding where it would have precluded the unsuccessful party a writ of execution or a writ of control, and a determination of from bringing fresh proceedings in that foreign jurisdiction. costs by an officer of the court. If a foreign judgment is the subject of appeal in that jurisdic- Similarly, the Lugano Convention (at Article 32), the Brussels tion, the English courts are likely to grant a stay on enforcement Regulation (at Article 32) and the Brussels Recast Regulation (at proceedings pending the outcome of that appeal. Article 2(a)) all stipulate that “judgment” means any judgment The common law rules also require the judgment to be given by a court or tribunal of a member or convention state enforced to have been rendered by a court of competent juris- whatever a judgment may be called, including a decree, order, diction, which is taken to mean one of the following: decision or writ of execution as well as the determination of a) the person against whom the judgment was given was, at costs or expenses. the time the proceedings were instituted, present in the These instruments therefore do not preclude from their scope foreign country; non-money judgments and interim orders, including injunctions. b) the person against whom the judgment was given was The AJA (at section 12) provides that “judgment” means any claimant, or counterclaimed, in the proceedings in the judgment or order given or made by a court in any civil proceed- foreign court; ings, whereby any sum of money is payable. The FJA has a similar c) the person against whom the judgment was given definition at section 11, defining a judgment as a judgment or submitted to the jurisdiction of that court by voluntarily order given or made by a court in any civil or criminal proceedings appearing in the proceedings (which will not include

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submitting arguments on the merits where under local law, The claimant must also file and serve “particulars of claim” on a challenge to jurisdiction can only be brought in conjunc- the judgment debtor, setting out the circumstances of the foreign tion with such arguments on the merits); or judgment. Service may need to be effected outside the jurisdic- d) the person against whom the judgment was given had, tion if the judgment debtor is not resident within the jurisdic- before the commencement of the proceedings, agreed, in tion, which may require permission to serve the proceedings out respect of the subject matter of the proceedings, to submit of the jurisdiction (unless the court makes an order to dispense to the jurisdiction of that court or of the courts of that with service out of the jurisdiction in exceptional circumstances), country. further complicating and/or delaying the process. Once service Only final judgments for payment of a definite sum of money is effected, the process is then usually expedited by the claimant (save for taxes, fines or penalties) can be enforced under common applying for summary judgment (under CPR Part 24), on law. This means, for example, that injunctions, interim orders grounds that the judgment debtor has no real prospect of success and other judgments obtained from foreign courts for specific as evidenced by the foreign judgment. The effect of applying for performance, payment into court or a declaration/dismissal of summary judgment is that the process of enforcing the foreign a claim/counterclaim can be recognised but cannot be enforced judgment is expedited and simplified. under English common law. Note, however, the issues highlighted below at question 2.7, The English court can sever parts of a foreign judgment for point d) in relation to the enforcement of foreign judgments given the purposes of enforcement proceedings, i.e. it can enforce in default and against defendants that have not expressly submitted the payment obligations set out in the foreign judgment, disre- to the jurisdiction of the foreign court, which may affect the garding any other parts of the foreign judgment which do amenability of the enforcement action to summary judgment. not constitute an obligation to pay a specified sum of money. Therefore, the existence of other obligations in conjunction 2.7 On what grounds can recognition/enforcement of a with those of a monetary payment does not necessarily exclude judgment be challenged? When can such a challenge be a foreign judgment from enforcement under the common law. made? However, enforcement of any part of a monetary payment obligation in a foreign judgment which has been calculated by multi- Recognition and enforcement under the common law regime plying a compensatory sum is not permitted. may be challenged by the defendant on the following grounds: a) the foreign judgment is not final and conclusive. A final 2.4 What (if any) connection to the jurisdiction is judgment is one that is final in the court in which the judg- required for your courts to accept jurisdiction for ment was made and may not be re-adjudicated by the same recognition and enforcement of a foreign judgment? court; b) the foreign court did not have jurisdiction over the parties. The courts of England and Wales have jurisdiction to decide on A foreign judgment is only enforceable if the foreign court questions of enforcement at common law without any need to had jurisdiction according to English principles of private establish a degree of connection with England or Wales. A court international law. It is not sufficient if the foreign court may, however, conclude that it is not the most convenient forum had jurisdiction according to its own legal rules; if there is no real connection to the jurisdiction. c) the judgment is contrary to the public policy of England. The judgment itself (and not the underlying transaction on which the judgment is based) must offend English public 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal policy; effects of recognition and enforcement respectively? d) the foreign judgment offends the principles of natural justice or substantial justice enshrined in the English legal system; for example, if the defendant was not given due Before a judgment can be enforced, it must first be recognised. notice of the original proceedings (with the result that The distinction is made for the reason that a judgment of a foreign judgment was obtained in default) or was not given a fair court cannot operate outside of its own territorially circum- opportunity to be heard; scribed jurisdiction without the medium of the English courts. e) the judgment was fraudulently obtained. This could Therefore, all foreign judgments enforced by English courts are involve fraud on the part of the party in whose favour the recognised, but not all recognised judgments are enforced. For judgment is given, or fraud on part of the court delivering example, a judgment in rem against an asset outside of England the judgment. Where a defendant relies on fraud on the and Wales cannot be enforced for the reason that the assets fall part of a foreign court, it has to adduce evidence to estab- outside of the jurisdiction of the English court; however, a party lish that there was improper influence (bias) of the foreign may seek recognition of that judgment for several reasons, such court and show that the foreign court’s findings were as defending claims within England or relying on the findings deliberately wrong and not merely incompetent; of the foreign judgment in other proceedings (res judicata). f) recognition of the foreign judgment would result in the Enforcement follows recognition and is required for the contravention of the Human Rights Act 1998; execution of the award, i.e. compelling a party to pay the sum of g) the dispute in question should be submitted to the deter- money ordered by the foreign court. mination of the courts of another country; h) the judgment imposes a fine or a penalty upon the judg- 2.6 Briefly explain the procedure for recognising and ment debtor; and enforcing a foreign judgment in your jurisdiction. i) there exists a previous final and conclusive judgment of a competent foreign or English court with sufficient juris- In order to recognise and enforce a judgment at common law, the diction that conflicts with the judgment that is being party seeking enforcement (the claimant) must commence a new sought to be enforced. claim (by issuing a Claim Form) as one would for any other claim. These challenges can be made by the defendant in the proceedings issued for the recognition or enforcement of the judgment.

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These grounds can be relied upon in the evidence submitted 2.12 Are there any differences in the rules and by the judgment debtor resisting the claimant’s summary judg- procedure of recognition and enforcement between ment application under CPR Part 24 or employed as defences to the various states/regions/provinces in your country? recognition and enforcement. Please explain.

2.8 What, if any, is the relevant legal framework The United Kingdom does not constitute a legal union, as the applicable to recognising and enforcing foreign laws of England and Wales differ from those of Scotland and judgments relating to specific subject matters? Northern Ireland. Enforcement of foreign judgments in Scotland and Northern Ireland are subject to their domestic jurisdictional There are several specific regimes pertaining to enforcement of and procedural rules, which are not addressed here. judgments on specific subject matters such as shipping, avia- All Scottish and Northern Irish judgments, granting both tion, intellectual property, etc. The Cross-Border Insolvency monetary and non-monetary relief (including injunctive relief Regulations 2006 (SI 2006/1030), the Civil Aviation Act 1982, and declarations), are recognisable and enforceable in England Carriage of Goods by Road Act 1965, Shipping Act 1995, etc. and Wales under the Civil Jurisdiction and Judgments Act 1982, are such examples. as long as they are final in the court that granted the judgment in question and there are no outstanding appeals.

2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a 2.13 What is the relevant limitation period to recognise conflicting local judgment between the parties relating and enforce a foreign judgment? to the same issue; or (b) local proceedings pending between the parties? Pursuant to section 24(1) of the Limitation Act 1980, the limitation period to commence a claim to enforce a foreign judgment Under common law, the defendant is entitled to challenge recog- at common law is six years from the date of the foreign judgment nition and enforcement of a judgment on the basis that a previous sought to be recognised and enforced. conflicting English judgment exists which has been conclusive in deciding the issues between the parties. The principle of res 32 Special Enforcement Regimes Applicable judicata would apply here, pursuant to which the matter already to Judgments from Certain Countries decided would be resolved in favour of the previous English judgment, in the interest of judicial certainty. If proceedings are ongoing in an English court between the 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form parties at the time when one of the parties seeks recognition and substance) must the judgment satisfy in order to or enforcement of a foreign judgment on the same issue(s), the be recognised and enforceable under the respective English court is likely to stay the English proceedings until the regime? judgment creditor’s claim for recognition and enforcement has been determined. The principle of res judicata is applied by the All judgments for the payment of a sum of money obtained from English court equally in cases where the issue has already been the ‘superior’ courts of Commonwealth countries covered by the decided by a competent court in a foreign jurisdiction. AJA can be registered in England if, in all the circumstances of the case, the English court in its discretion finds it just and 2.10 What is your court’s approach to recognition and convenient that the judgment should be enforced in England. enforcement of a foreign judgment when there is a The FJA (like the common law regime) only covers final and conflicting local law or prior judgment on the same or a conclusive judgments for payment of a sum of money (other similar issue, but between different parties? than penalties and taxes). Failure to serve proceedings on the defendant in order to Generally, the basis for challenging enforcement under common enable it to defend the action is a ground on which recognition law will not include an investigation of the merits of the claim/ and enforcement of the foreign judgment may be refused under award being enforced. A foreign judgment may not therefore the AJA and FJA. However, a mere procedural irregularity in be challenged on the grounds that the foreign court was mani- service will not render the foreign judgment unenforceable. The festly wrong on the merits of the case or misapplied the relevant defendant would have to show that it was not made aware of law. However, if the foreign court’s judgment conflicts with an the proceedings as opposed to being formally served in time in existing English law or if the foreign judgment is irreconcilable order to succeed on this defence. with an English judgment on the same issues, then the court In order for the foreign judgment to be registered, the AJA may refuse to recognise the foreign judgment on grounds that its and FJA require that the foreign court should have had jurisdic- recognition and enforcement would be contrary to public policy. tion over the parties and the relevant issues in dispute according to English law principles. It is not sufficient that the foreign 2.11 What is your court’s approach to recognition and court had jurisdiction according to its own rules. enforcement of a foreign judgment that purports to Under the AJA, the foreign judgment must be registered apply the law of your country? within one year from the date of the final judgment sought to be enforced, although the English court retains a discretion to accept registrations after the lapse of the stipulated period if the A judgment of a foreign court purporting to apply English law court finds that it would be just and convenient to register the would be treated the same as any other foreign judgment. A foreign judgment having considered all the circumstances of the foreign judgment is not open to challenge on the ground that it case. misapplies English law.

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Under the FJA, foreign judgments must be registered within 3.4 With reference to each of the specific regimes set six years from the date of the final judgment sought to be out in question 1.1, on what grounds can recognition/ enforced. If there have been appeal proceedings, time runs enforcement of a judgment be challenged under the from the date of the last judgment. special regime? When can such a challenge be made?

3.2 With reference to each of the specific regimes set The registration order which registers the judgment will specify out in question 1.1, does the regime specify a difference the right of the judgment debtor to apply to have the registration between recognition and enforcement? If so, what is the set aside, the period within which such an application or appeal difference between the legal effect of recognition and may be made and that no measures of enforcement will be taken enforcement? before the end of that period, other than measures ordered by the court to preserve the property of the judgment debtor. The AJA and FJA require foreign judgments to be registered in Under the AJA and FJA, upon receipt of a registration order, England before they can be enforced. the judgment debtor can challenge the registration of the foreign As stated above, under the AJA, the English court retains a judgment on the following grounds: discretionary power to register foreign judgments that it finds a) the court granting the judgment acted without jurisdiction just and convenient to enforce. (according to English law principles); Under the powers specified in the FJA, the court must register b) the defendant was not served with proceedings in accord- judgments that fulfil certain criteria, such as the judgment being ance with the rules of the foreign court and did not appear for a specified sum of money and the court that granted the in the proceedings; judgment having had jurisdiction over the parties and issues, c) there were “significant” breaches of natural justice in in accordance with its own legal system and rules, as well as in obtaining the judgment (such as the defendant not being accordance with English law principles. able to present its defence) that lead to the conclusion that Once a foreign judgment has been registered in England, that it is not “just and convenient” for the judgment to be regis- judgment, as from the date of registration, has the same force tered in the UK; and effect as an English judgment and enforcement proceedings d) the judgment was obtained fraudulently; can be brought in respect of it as if it was a judgment originally e) the enforcement of the judgment would be contrary to obtained in England. The methods of enforcement described at public policy; question 4.1 below therefore become available to the judgment f) the judgment imposes a fine or a penalty on the defendant; creditor upon registration. g) the judgment is not final and conclusive. The existence of a pending appeal can either defeat the enforcement action or, 3.3 With reference to each of the specific regimes set more likely, lead to a stay of the enforcement action pending out in question 1.1, briefly explain the procedure for determination of the appeal. An appeal will only be regarded recognising and enforcing a foreign judgment. as “pending” where the defendant/judgment debtor has an entitlement to appeal which is not dependent on any permis- Under the AJA and FJA, the application for registration must be sion or extension being granted by an appellate court; made at the High Court and may be made without notice to the h) the judgment has been wholly enforced in the jurisdiction judgment debtor. The judgment creditor must file an authenti- of the foreign court; and cated copy of the judgment of which recognition and enforce- i) there exists a previous final and conclusive judgment of a ment is sought, an English translation (if necessary) of the judg- competent foreign or English court with sufficient juris- ment (which must be certified by a notary public) and a witness diction that conflicts with the judgment that is being statement in support of the application in the form set out in sought to be enforced. CPR Part 74.4. The application to challenge registration must be made within The application for registration and written witness evidence the time specified in the registration order. The court may must specify the grounds for enforcement, the amount in respect extend that period. of which the foreign judgment remains unsatisfied, and the amount of interest claimed. In the case of registration under the 42 Enforcement FJA, the written evidence must also specify that the judgment is a money judgment and confirm that it can be enforced by execution 4.1 Once a foreign judgment is recognised and in the state of origin. enforced, what are the general methods of enforcement Where the application for enforcement is challenged on the available to a judgment creditor? grounds set out in question 3.4 below, the foreign court may be required to provide a declaration of enforceability upon the Once a judgment is recognised/registered, a judgment creditor consideration of the merits of the opposition to the application. An application for the declaration of enforceability must be made has available to it the same methods and options to enforce that under CPR Part 23 using Form N244. judgment or award against assets within England as it would if Once an order granting permission to register the foreign the original judgment had been made in England. Under the judgment has been granted by the English court, the order must AJA and FJA, enforcement proceedings cannot commence until be served on the judgment debtor by delivering it personally, by the registration order has been served on the judgment debtor any of the methods of service permitted under the Companies and the specified time limit for the judgment debtor to challenge Act 2006, or as directed by the court. To be valid service, the registration has expired. such service should also constitute good service in the foreign Potential methods of enforcement available to judgment cred- country where the registration order is being served, and such itors include but are not limited to: service should be effected with the formality that would attach a) Charging order – Such an order would confer upon the judg- to service in the foreign country where the registration order ment creditor an interest over the property (land, goods, secu- is being served. Permission to serve the registration out of the rities, etc.) of the judgment debtor within the jurisdiction. jurisdiction is not required.

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b) Order for sale – An order to sell the assets of the judgment The UK has also taken certain steps to plug the gap left by debtor subject to a charging order. the Brussels Recast Regulation. First, the UK has applied to c) Receivership order – This allows for the appointment of accede to the Lugano Convention in its own right, but the unan- a court-appointed receiver who would help gather and imous approval of all contracting states (including the EU) is ascertain the judgment debtor’s assets in order to facilitate required and is still pending. In the past, Switzerland, Iceland payment of judgment debts. and Norway have issued statements that they will support the d) Third-party debt order – This allows the judgment cred- UK’s request for accession to the Lugano Convention. Secondly, itor to collect on the debts owed to the judgment debtor. the UK has now acceded to the Hague Convention on Choice of Note: this order cannot be made against future or foreign Court Agreements as an independent contracting party, effec- debts. tive from 1 January 2021. e) Writ of control or warrant of control – This allows the While the UK’s departure from the EU has resulted in judgment creditor to take possession of the judgment debt- changes to the pre-Brexit EU framework for recognition and or’s goods to sell at auction or trade in satisfaction of the enforcement of judgments, we anticipate that the English debt. courts will continue to recognise and apply clearly drafted juris- f) Attachment of earnings order – The judgment creditor diction clauses, and that judgments of the English courts will may seek an order compelling an employer to deduct from likely continue to be enforced in Member States (and vice versa), an employee’s salary (who is the judgment debtor) the sums albeit perhaps with additional procedural steps to overcome. necessary to pay the judgment creditor. For further details on the applicable post-Brexit framework for Pursuant to section 25 of the Civil Jurisdiction and Judgments recognition and enforcement of judgments, please see Chapter 1. Act 1982, the English court can also grant provisional/interim measures such as freezing injunctions in support of enforce- 5.2 Are there any particular tips you would give, or ment of foreign judgments pending enforcement proceedings in critical issues that you would flag, to clients seeking England. Such provisional measures are ordinarily granted only to recognise and enforce a foreign judgment in your in circumstances where it would be expedient to do so and there jurisdiction? is a sufficient jurisdictional link to England; for example, if the assets are located in England or the defendant resides in England. Owing to the variety of regimes discussed above, it is particu- Pursuant to CPR 74.9(1), if the defendant has made an application larly important for clients seeking to enforce a foreign judg- to set aside an order registering a foreign judgment, no steps can be ment in England to consider first which of the many regimes in taken to enforce the judgment until the application has been decided. England would apply, in order to determine the procedural route to be taken to achieve enforcement. 52 Other Matters There is a particular risk in enforcing default judgments (i.e. a judgment in which the defendant has not appeared) because 5.1 Have there been any noteworthy recent (in the they inevitably raise the question of whether the foreign court last 12 months) legal developments in your jurisdiction had jurisdiction in the first place and whether the parties did, relevant to the recognition and enforcement of foreign in fact, submit to the jurisdiction of that court. This is because, judgments? Please provide a brief description. under English law, there is no concept of implied submission to jurisdiction in personam, which means that the defendant must On 24 December 2020, the EU and the UK reached agree- have expressly submitted to the jurisdiction of the foreign court ment on the terms of the “EU-UK Trade and Cooperation in order for a judgment in personam to be enforced by an English Agreement” (the “Brexit Deal”), which came into effect from 11 court. pm GMT on 31 December 2020. However, the Brexit Deal is English law recognises sovereign immunity as a valid defence silent on any future framework for ongoing civil judicial coop- to the enforcement of a foreign judgment against a state. This eration between the UK and EU countries. With the UK’s is because proceedings commenced in England by a judgment departure from the EU, the main EU instruments on jurisdic- creditor for the purpose of enforcing a foreign judgment against tion and enforcement of judgments – namely the Brussels Recast a state do not qualify as “proceedings relating to a commercial trans- Regulation (its predecessor the Brussels Regulation) and the action for the purposes of s.3(1) of the State Immunity Act 1978”. The Lugano Convention – no longer apply to civil and commercial UK Supreme Court decision in NML Capital Ltd v Republic of proceedings commenced in the UK on or after 1 January 2021. Argentina ([2011] UKSC 31) confirmed that a state is able to However, there is a run-off period for the pre-Brexit EU raise sovereign immunity as a defence in respect of enforcement Regime. Under the terms of the Withdrawal Agreement, the proceedings of foreign judgments and awards, even if the under- Brussels Recast Regulation continues to apply to legal proceed- lying proceedings relate to commercial transactions, unless the ings that were commenced before the end of the transition state has expressly waived sovereign immunity as a defence to period (i.e. before 31 December 2020). Pursuant to Article 67(1) enforcement (as it had on the facts of that case). In light of of the Withdrawal Agreement, the Brussels Recast Regulation this interpretation of the State Immunity Act 1978, enforcing also applies to related proceedings that are commenced after the judgments against a state which has not expressly waived immu- conclusion of the transition period; for example, those that arise nity in relation to enforcement proceedings is made particu- from the same cause of action, or involve the same parties. In larly difficult, as there is little ammunition available to the judg- relation to the Lugano Convention, pursuant to Regulation 92 ment creditor seeking to defeat a sovereign immunity defence. of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Furthermore, even if a judgment creditor is able to enforce a Regulations 2019, UK courts will continue to apply the Lugano judgment against the state, there are restrictions on the type of Convention to proceedings commenced before 31 December assets available for enforcement. 2020, but it is unclear whether courts in Iceland, Norway and Switzerland would take the same approach.

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Covington & Burling LLP Tel: +44 20 7067 2000 265 Strand Email: [email protected] London WC2R 1BH URL: www.cov.com United Kingdom

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 54 Chapter 10 France France

Jacques-Alexandre Genet

Archipel Michaël Schlesinger

12 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.

Corresponding Applicable Law/Statutory Regime Relevant Jurisdiction(s) Section Below French Code of civil procedure, French French Code of civil procedure, French Code of civil enforcement Code of civil enforcement procedures and Section 2. procedures and corresponding case law. corresponding case law. State parties to multilateral conventions including: the Hague Convention of 30 June 2005 on Choice of Courts Agreements; the Convention on the Contract for the International Carriage of Goods Multilateral conventions. Section 2. by Road of 19 May 1956; the Convention concerning International Carriage by Rail of 9 May 1980; and the Convention on Third-Party Liability in the Field of Nuclear Liability of 29 July 1960. Algeria, Argentina, Benin, Bosnia-Herzegovina, Brazil, Burkina Faso, Cameroon, Central African Republic, Chad, China, Congo Bilateral conventions on mutual judicial (Brazzaville), Djibouti, Egypt, Gabon, Ivory Coast, Laos, Section 3. assistance. Macedonia, Madagascar, Mali, Mauritania, Mongolia, Montenegro, Morocco, Niger, Senegal, Serbia, Togo, Tunisia, United Arab Emirates, Uruguay, and Vietnam.

22 General Regime or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. This includes provisional (including protective) measures ordered by a court 2.1 Absent any applicable special regime, what is the or tribunal which, by virtue of these Regulations, has jurisdic- legal framework under which a foreign judgment would tion as to the substance of the matter. Hence, for instance, an ex be recognised and enforced in your jurisdiction? parte worldwide freezing order issued abroad may be enforced in France after prior notice to the defendant. Subject to special regimes set out by EU Regulations and bilateral In France, any decision whatsoever from a foreign judge may or multilateral conventions, the legal framework under which a qualify as a ‘judgment’ capable of recognition and enforcement foreign judgment may be recognised and enforced in France in France if it has consequences on individuals or legal entities, is the French Code of civil procedure and the French Code of assets, rights or liabilities. This includes both contentious and civil enforcement procedures, supplemented by the relevant case non-contentious proceedings. Yet, it is not possible to obtain law regarding the numerous matters in which the codes remain the recognition and enforcement of a judgment from a foreign silent. In a civil law jurisdiction like France, case law, whilst not country which recognises or enforces a judgment from another being formally binding, is highly persuasive on lower courts. country. The later judgment shall be recognised and enforced directly in France irrespective of the recognition and enforce- 2.2 What constitutes a ‘judgment’ capable of ment obtained abroad, which is only persuasive. recognition and enforcement in your jurisdiction? Rulings from foreign non-judicial authorities (e.g. administrative, religious, etc.) may also qualify as ‘judgment’ if they are issued by a public authority in charge of a matter which, in For the purposes of EU Regulations, ‘judgment’ means any judg- France, would fall under the jurisdiction of a court or tribunal. ment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision

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2.3 What requirements (in form and substance) must registered with the appropriate court of first instance, the latter a foreign judgment satisfy in order to be recognised and normally associates with a local lawyer. The requesting party enforceable in your jurisdiction? must provide a certified copy of the foreign judgment together with a translation if the judgment is not issued in French. A sworn To be recognised and enforced in France, a foreign decision must translation is not required unless the translation provided by the qualify as a court judgment and be enforceable in its jurisdic- requesting party is disputed. tion of origin, according to the law of that jurisdiction. It does The enforcement decision may be appealed within one month of not need to be final, and foreign judgments that are enforce- being notified by one party to the other (or three months for parties able despite being subject to appeal can be recognised in France. domiciled abroad). Usually, service is made by the prevailing party. The foreign judgment must have been rendered by a court Service is carried out by bailiffs (huissiers de justice) when the having jurisdiction over the dispute. A foreign court is deemed recipient is domiciled in France. When the recipient is domi- to have jurisdiction if it has tangible links with the dispute and ciled abroad, unless provided otherwise by special conven- if the matter does not fall under the exclusive jurisdiction of tions on international service, a special procedure applies. The French courts. bailiff must hand over the act to be served to the public prose- Additional requirements such as compliance with due process, cutor who, in turn, will transfer it through the Ministry of Justice proper appearance in court, etc., are considered part of French and the Ministry of Foreign Affairs to the relevant authority in public policy. As such, they are addressed in question 2.7 below. the recipient’s country. It is recommended practice to supervise the service process. The appeal period is running only as of the effective reception by the recipient. 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? French law does not require any specific connection to France to accept jurisdiction for recognition and enforcement of a foreign judgment. A foreign judgment may only be challenged on the grounds that: (i) It does not meet the conditions set out in question 2.3 above. 2.5 Is there a difference between recognition and (ii) The judgment is incompatible with French international enforcement of judgments? If so, what are the legal public policy. effects of recognition and enforcement respectively? Under international public policy, French courts exercise more restraint, and show greater deference to foreign courts French law distinguishes between the recognition and enforce- than under domestic public policy. Examples of international ment of judgments. public policy requirements are: proper service to the defendant; Recognition is intended to introduce the situation established reasonable time afforded to the parties during the foreign by a foreign judgment into the French legal order. Most foreign proceedings; equality of arms in the course of the proceedings; judgments are recognised in France without the need for a court and independence and impartiality of the foreign court. judgment. However, a party may wish to seek recognition to The court also looks at whether the effects of the foreign judg- secure a formal acknowledgment of its rights. For instance, ment breach French international public policy. For example, a party can request recognition: to prevent a claim already French courts consider punitive damages to be compatible with judged in a foreign court from being made in France; or, on the French international public policy only if they are not dispropor- contrary, to support a new claim made in France on the basis of tionate to the actual harm suffered. As a result, and as an example, the legal situation created by a foreign judgment. damages for disgorgement of profit would most likely not be Enforcement carries greater effect in that it allows a party to enforced in France. take coercive steps against the debtor on the French territory. (iii) The judgment was procured by fraud. The foreign judgment acquires the same legal force and effects as (iv) The judgment conflicts with another judgment (as to a French judgment, providing full access to the available enforce- which see question 2.10 below). ment measures under French law. A challenge is made during the enforcement proceedings before In practice, creditors seeking to recover a claim in France the court of first instance (see above, question 2.6) or during any (other than by setting it off with a debt towards the opposing proceedings in which the foreign judgment is relied upon. party) will seek an enforcement order (named an exequatur). In some cases, it is appropriate to make a pre-emptive action to declare a foreign judgment unenforceable in France, at the 2.6 Briefly explain the procedure for recognising and request of any interested party. In commercial settings, this enforcing a foreign judgment in your jurisdiction. is more commonly the case when seeking to prevent a foreign judgment liquidating a company from having effects in France. French courts cannot review the merits of the judgment. To obtain an enforcement order, the judgment creditor must They especially cannot review whether the foreign court applied summon the opposing party before a court of first instance the correct law (according to its own private international law (tribunal judiciaire). The request may be brought before the court of rules) to the merits of the dispute. the opposing party’s domicile (art. 42 of the Code of civil procedure) or the court of the place where the enforcement is contemplated. The ruling will be made by a single judge unless the 2.8 What, if any, is the relevant legal framework parties expressly require a three-judge panel (art. R. 212–8 of the applicable to recognising and enforcing foreign Code for judicial organisation) following the exchange of written judgments relating to specific subject matters? submissions and a hearing. The procedure will typically take six months to a year. Parties must be represented by a lawyer regis- Regulations for the recognition and enforcement of foreign tered with the local bar association. If the main counsel is not judgments normally apply to all subject matters.

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As an exception to the above: 2.12 Are there any differences in the rules and ■ Foreign judgments rendered on public matters, i.e. through procedure of recognition and enforcement between which the government of a foreign country relies upon its the various states/regions/provinces in your country? sovereign prerogatives (typically tax and criminal judgments), Please explain. cannot be recognised and enforced in France. However, severable parts of foreign criminal judgments ordering mone- Private international law rules apply to all French territory. tary compensation may be enforced in France. This includes all territorial subdivisions, i.e. continental France, ■ Certain multilateral conventions to which France is Overseas Departments and Regions (départements et régions a party, including those listed at question 1.1 above, d’outre-mer), Overseas Provinces (collectivités d’outre-mer) and New contain specific subject matter provisions as to recogni- Caledonia. For historical reasons, special rules apply to the tion/enforcement. Except for the Hague Convention on attachments in three districts in Eastern France: the départements Choice of Courts Agreements, which is intended to apply of Bas-Rhin; Haut-Rhin; and Moselle. This has no bearing on the to all commercial matters, these multilateral conventions enforcement proceedings themselves but will affect subsequent complement recognition/enforcement regimes in very attachments. specific subject matters, such as international transport and nuclear liability. ■ The enforcement of arbitral awards falls under a separate 2.13 What is the relevant limitation period to recognise regime and foreign judgments recognising arbitral awards and enforce a foreign judgment? cannot be enforced in France. There is no specific provision regarding the limitation period to enforce a foreign judgment. Since French courts can only 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a enforce foreign judgments that are enforceable in their country conflicting local judgment between the parties relating of origin (see above question 2.2), the limitation period to recog- to the same issue; or (b) local proceedings pending nise or enforce a foreign judgment could depend on the law appli- between the parties? cable to the foreign judgment in its country of origin. However, the matter cannot be considered legally settled. French law Recognition/enforcement may be denied in case of incompat- provides for a 10-year limitation period applicable to all enforce- ibility with a prior conflicting judgment. Two judgments are ment orders (i.e. including foreign judgments) rendered after 23 deemed incompatible when their legal consequences exclude June 2006. Enforcement orders rendered before such date are each other. time-barred after 30 years and in any event on 23 June 2016. Any incompatibility between two foreign judgments is settled in accordance with the prior tempore rule, i.e. the judgment 32 Special Enforcement Regimes Applicable rendered first is deemed to prevail. An incompatibility between to Judgments from Certain Countries a foreign judgment (which has not yet been recognised in France) and a French judgment is always settled in favour of the French 3.1 With reference to each of the specific regimes judgment, even if the French judgment is subsequent. set out in question 1.1, what requirements (in form To prevent a French judgment from prevailing over a prior and substance) must the judgment satisfy in order to foreign judgment, a party can apply for recognition in France so be recognised and enforceable under the respective as to be able to rely on the foreign judgment’s res judicata effect. regime? When local proceedings are pending in France, the recognition/ enforcement of the foreign judgment may still be sought sepa- All bilateral conventions set out in question 1.1 above require rately. However, two related proceedings will then be pending a final and binding foreign judgment in the country of origin before a French court, making it likely that the cases will be joined before being recognised and enforced in the country. or that one case will be stayed pending the result of the other. In addition, under all bilateral conventions (save the one between France and Mali that refers to the above-described 2.10 What is your court’s approach to recognition and French general regime), the foreign judgment must have been enforcement of a foreign judgment when there is a rendered by a court of competent jurisdiction according to conflicting local law or prior judgment on the same or a French private international law rules. Bilateral conventions similar issue, but between different parties? entered into with Egypt, Tunisia, the United Arab Emirates and Uruguay provide specific rules to determine whether the The existence of a conflicting local law or prior judgment foreign court had jurisdiction over the dispute. Other conven- between different parties is irrelevant, unless it would amount to tions simply refer to the private international law rules of the an incompatibility with French international public policy rules. signatory State in which enforcement is sought. Bilateral conventions also require that the defendant must have been properly summoned. 2.11 What is your court’s approach to recognition and Other conditions of substance are set out in question 3.4 enforcement of a foreign judgment that purports to below. apply the law of your country?

French courts cannot review the merits of 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 even if the foreign court incorrectly applied French law. There is between recognition and enforcement? If so, what is the therefore no particular approach to the recognition and enforce- difference between the legal effect of recognition and ment of a foreign judgment that purports to apply French law. enforcement?

All bilateral conventions provide for the automatic recognition

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of foreign judgments, which has the same effects and limitations recovery of its claim”. In practice, such a threat will result from as described under the general regime at question 2.5 above. evidence that the debtor has hidden its assets, is likely to disappear or become insolvent. The interim attachment will be executed by a bailiff without prior notice to the debtor and without the need 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for for a court order (unless the debtor is a foreign State, in which recognising and enforcing a foreign judgment. case, the creditor must seek ex parte prior judicial authorisation). The targeted asset will automatically be frozen upon service to the asset holder, be it the debtor itself or a third party. The attach- Bilateral conventions provide simplified proceedings to obtain ment must then be notified to the debtor within eight days and is enforcement of a foreign judgment. The judgment creditor subject to judicial review. must summon the opposing party before the President of the Unless a court orders the attachments lifted, the assets will Court of first instance (tribunal de grande instance) through fast- remain frozen for the duration of the enforcement procedure. track proceedings (référé). The procedure is primarily oral but, in If the court orders an enforcement of the foreign judgment, the practice, parties often also file written submissions. The proce- frozen assets will be transferred to the creditor. dure will normally take approximately six months. Attachments may be executed on movable or immovable Whilst parties do not necessarily need to be represented by assets, whether tangible or intangible, including the following locally registered lawyers, the assistance of a French-qualified specific categories: real estate; bank accounts; claims; dividends; lawyer is recommended. royalties; vehicles of different types (cars, coaches, aircraft, The claimant must provide: (i) an original copy of the foreign boats, etc.); art; and movables whatsoever stored in bank safes, judgment together with, if applicable, its simple translation (a etc. The French Code of civil enforcement procedures provides sworn translation is required only in case the quality of the specific attachment rules for each category. translation is challenged); (ii) a copy of the service of the deci- French law provides for various options to judgment creditors sion to the debtor; (iii) a certificate from the foreign court clerk to identify their debtor’s assets. stating that no appeal was filed; and (iv) if applicable, a copy of All bank accounts opened in France, and the names of their the initial summons if the decision was rendered in absentia. holders, are registered in the FICOBA database, which is acces- The enforcement order may be appealed within one month of sible to creditors holding French enforceable titles. The request its service (or three months for parties domiciled abroad). must be made through bailiffs. The identity of landowners and a copy of the deeds of the 3.4 With reference to each of the specific regimes set sale/mortgage are registered at local land registries. out in question 1.1, on what grounds can recognition/ Garnishees/third-party debtors are compelled to disclose, upon enforcement of a judgment be challenged under the service of an attachment order, all their financial commitments to special regime? When can such a challenge be made? the debtor and to provide supporting documentation. Failing to do so, garnishees/third-party debtors may be liable for damages. According to all bilateral conventions listed above – again with In any case, a judgment creditor can proceed with the the exception of the one between France and Mali, which refers final attachment at the debtor’s premises or in the hands of a to the above-described general regime – enforcement may be garnishee. refused if the conditions of the form set out in question 3.1 Attachments carried out in France are deemed to include all above are not fulfilled. In addition, recognition/enforcement assets located in France – which include, in some circumstances, will be denied if the judgment conflicts with French interna- receivables against foreign branches (not subsidiaries) of French tional public policy rules, or if a judgment is incompatible with entities. another judgment rendered, or to be rendered, whether in France In case of sophisticated debtors, the judgment creditor may or elsewhere between the same parties, on the same grounds and seek injunctive reliefs against third parties or the debtor himself for the same purpose. and may even, in some circumstances, be authorised to carry out There is no review of the choice of law by the foreign court searches with the assistance of a bailiff, in a similar way as under, except for judgments rendered in Brazil, the Central African e.g., the English Norwich Pharmacal or discovery orders. Republic, Chad, Djibouti, Gabon and Senegal, for which the French law also provides a variety of tools to enforce a foreign judgment against proxies. The creditor may, for instance, chal- French courts will apply French private international law rules to lenge the fraudulent disposal of an asset by the debtor to escape determine whether the foreign court applied the appropriate law. payment obligations (action paulienne). He can also pierce the For judgments rendered in Mongolia, the United Arab corporate veil by establishing the fictitious nature of the corpo- Emirates and Vietnam, recognition/enforcement cannot be rate entity (simulation). refused on the ground that the foreign judge has applied its own A debtor may challenge enforcement measures within one private international rules if the chosen law leads to the same month of service (or three months if the debtor is domiciled result on the merits as would have been the case by applying the abroad). The case must be filed before an enforcement judge law applicable under French conflict-of-law rules. ( juge de l’exécution) who generally rules within three to six months, after the parties have had the chance to file written briefs and 42 Enforcement appear in court. The judgment can be appealed.

4.1 Once a foreign judgment is recognised and 52 Other Matters enforced, what are the general methods of enforcement available to a judgment creditor? 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction In France, a judgment creditor can carry out interim enforce- relevant to the recognition and enforcement of foreign ment measures on the basis of a foreign judgment even before judgments? Please provide a brief description. beginning recognition/enforcement court proceedings in France, provided that it can rely on the existence of a “threat to the On 10 December 2020, the French Cour de cassation issued two

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landmark rulings widening the scope of enforcement in France 5.2 Are there any particular tips you would give, or where the third-party debtor is a foreign corporate entity. critical issues that you would flag, to clients seeking In the first case (Parienti), the third-party debtor was a UK to recognise and enforce a foreign judgment in your bank operating through several branches throughout the world, jurisdiction? including in New York and Paris. The attachment order was served to the Paris branch, which spontaneously declared that Judgment creditors should bear in mind that enforcement some liabilities were owed by the New York office. In the proceedings in France are often slowed down by service second case (Bellelis), the third-party debtor was the Paris office processes. These can be extremely lengthy when it comes to of a US law firm which had entered into a lease agreement with service to debtors domiciled abroad (as they often are), and even the US government (the judgment debtor) for the commercial more so when the debtor is a foreign State (see above at ques- use of some real estate property located in Paris. tion 2.4). It is therefore important to closely monitor the service In both cases, the Paris court of appeal had lifted the attach- process with the relevant authorities, both to ensure its formal ments on the ground that no attachment could be carried out in validity and to prevent undue delays. France against foreign-located assets and decided that intangible In addition, all enforcement-related acts are performed by assets (such as bank accounts, claims…) are located at the regis- bailiffs (huissiers de justice). French bailiffs are hired by the parties tered office of the third-party debtor and/or, where financial insti- themselves rather than appointed by the court. Because French tutions are involved, at the local branch holding the bank account. bailiffs have jurisdiction over a limited geographical area, The French Cour de cassation quashed this reasoning and enforcement attempts in France can imply having to commission decided that an attachment may be validly carried out in France several bailiffs, depending on the location of the assets. Not all provided that French courts have jurisdiction over the third- bailiffs may be familiar with enforcing foreign judgments. party debtor in order to compel it to pay the creditor. Such juris- Retaining the services of a competent local bailiff experi- diction exists where the third-party debtor is “established in enced in foreign judgment enforcement is a key part of enforcing France”, i.e. when it comes to corporate entities (be they finan- in France and enhances the likelihood of effective collection. cial institutions or not) either if the registered office is located in France, or if the “entity located in France has the authority and power to pay the debtor”.

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Jacques-Alexandre Genet is a partner of Archipel specialising in international business law and international litigation. He is a leading player in sovereign debt recovery, international enforcement, asset tracing and interim measures. He advises international corporations on issues arising from doing business in France, the Middle East and Africa (including international sales contracts, distributorship/agency agreements, OHADA law, etc.). He is a graduate of Sciences-Po Paris in finance and University Paris 10 (Nanterre–La Défense) in law. Jacques- Alexandre is a member of EMTA (Emerging Markets Trade Association), CFA (the French Arbitration Committee), Juris Défi (a network of business lawyers) and the Arbitration Council of the French-Arab Chamber 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 Tel: +33 1 4054 5100 92, rue Jouffroy d’Abbans Email: [email protected] 75017 Paris URL: www.archipel.law France

Michaël Schlesinger is a partner of Archipel specialising in complex litigation matters with an international aspect. He joined Archipel in 2012 and concentrates his practice on enforcement and recovery procedures, especially in the context of fraud or in disputes involving sovereign entities. Before joining the firm, Michaël clerked for a judge at the Versailles Court of Appeal and trained with a third-party funder specialised in international arbitration and claims collection. He holds a postgraduate degree in private international law and business law from the University Paris 1 (Panthéon–Sorbonne). Michaël is a member of the board of directors of the Association of Lawyers Practicing Civil and Enforcement Proceedings (AAPPE).

Archipel Tel: +33 1 4054 5100 92, rue Jouffroy d’Abbans Email: [email protected] 75017 Paris URL: www.archipel.law France

Archipel is a boutique law firm serving the cross-border needs of corporate and private clients. The team comprises 20 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. www.archipel.law

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 60 Chapter 11 Germany Germany

Dr. Nils Schmidt-Ahrendts

Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbH Dr. Johanna Büstgens

12 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.

Corresponding Applicable Law/Statutory Regime Relevant Jurisdiction(s) Section Below Multilateral conventions All countries signatory to the The Hague Convention on Civil Procedure of 1 March 1954. Question 2.8. Convention. Convention on the Contract for the International Carriage of Goods All countries signatory to the Question 2.8. by Road of 19 May 1956. Convention (more than 50 countries). New York Convention on the Recovery Abroad of Maintenance of 20 All countries signatory to the Question 2.8. June 1956. Convention. The Hague Convention concerning the Recognition and Enforcement All countries signatory to the of Decisions relating to Maintenance Obligations towards Children of Question 2.8. Convention. 15 April 1958. New York Convention on the Recognition and Enforcement of All countries signatory to the Section 3. Foreign Arbitral Awards of 10 June 1958. Convention (more than 160 countries). The Hague Convention on the Recognition and Enforcement of All countries signatory to the Question 3.2. Decisions Relating to Maintenance Obligations of 2 October 1973. Convention. The Hague Convention on Jurisdiction, Applicable Law, Recognition, All countries signatory to the Enforcement and Co-operation in Respect of Parental Responsibility Question 3.2. Convention. and Measures for the Protection of Children of 19 October 1996. The Hague Convention on the International Recovery of Child Support All countries signatory to the Question 3.2. and Other Forms of Family Maintenance of 23 November 2007. Convention. The Hague Convention on the Recognition and Enforcement of The Convention is not yet in force. N/A. Foreign Judgments in Civil or Commercial Matters of 2 July 2019. Bilateral treaties Austria, Belgium, Greece, Italy, Several bilateral treaties. the Netherlands, Norway, Spain, Section 3. Switzerland, Turkey and the UK. Treaty between Germany and Israel on the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters of 20 July Israel. Question 3.3. 1977. Treaty between Germany and Tunisia on Legal Protection and Legal Assistance, the Recognition and Enforcement of Judgments in Civil Tunisia. Question 3.3. and Commercial Matters and on Commercial Arbitration dated 19 July 1966. Treaty of Friendship, Commerce and Navigation between the United States of America and the Federal Republic of Germany of 29 October The USA. Question 3.1. 1954.

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Domestic law All countries to which none of the Insolvency Statute. above specific statutes/regulations Question 2.8. apply. All countries to which none of the Act on Proceedings in Family Matters and in Matters of above specific statutes/regulations Question 2.8. Non-contentious Jurisdiction. apply. All countries to which none of the above specific statutes/regulations apply (there- Code of Civil Procedure. Section 2. fore including, inter alia, Brazil, China, India, Russia and the USA).

22 General Regime ■ The respondent who did not make an appearance in the proceedings and who takes recourse to this fact has not duly been served the document by which the proceed- 2.1 Absent any applicable special regime, what is the ings were initiated, or not in such time as to allow him to legal framework under which a foreign judgment would defend himself (Section 328 I No. 2 ZPO). be recognised and enforced in your jurisdiction? ■ The judgment is irreconcilable with a judgment rendered in Germany, or with an earlier judgment of a foreign court The general legal framework under which a foreign judgment is that is to be recognised in Germany, or if the proceedings recognised and enforced is contained in Sections 328, 722, 723 on which such judgment is based are irreconcilable with of the Code of Civil Procedure (“ZPO”). Section 328 ZPO sets proceedings that have become pending earlier in Germany out the necessary conditions for a foreign judgment to be recog- (Section 328 I No. 3 ZPO). nised. Sections 722, 723 ZPO govern enforcement proceedings. ■ The recognition of the judgment would lead to a result that would obviously be contrary to German public policy 2.2 What constitutes a ‘judgment’ capable of (Section 328 I No. 4 ZPO). recognition and enforcement in your jurisdiction? ■ Reciprocity has not been granted, i.e. an equivalent German judgment would not be recognised in the relevant foreign country (Section 328 I No. 5 ZPO). Foreign judgments within the meaning of Sections 328, 722, As regards enforcement of foreign judgments, judgments 723 ZPO include all state court decisions on the merits that are granting performance can be declared enforceable, whereas rendered in civil matters, including commercial, employment declaratory judgments and judgments establishing or altering a and labour law and competition law matters. Family matters, legal relationship cannot. However, cost decisions as part of such by contrast, are excluded and decisions concerning such matters judgments can be declared enforceable. It is disputed whether are recognisable and enforceable under Section 107 et seq. of court settlements and public deeds can be declared enforceable. the Act on Proceedings in Family Matters and in Matters of To be declared enforceable, the judgment must be valid. It Non-contentious Jurisdiction (“FamFG”). While cost decisions must be final and not subject to appeal (Section 723 II 1 ZPO). constitute decisions in the above sense, court settlements and Moreover, the judgment must be enforceable in the jurisdiction enforceable deeds do not qualify as decisions and are, thus, not where it was rendered. Lastly, the conditions for the recognition recognisable. A state court, within the meaning of Sections 328, of foreign judgments as set out in Section 328 I ZPO must be 722, 723 ZPO, comprises any public body that is empowered fulfilled (Section 723 II 2 ZPO). under the law of the state that rendered the decision to resolve disputes. The recognition of foreign judgments is not restricted to monetary judgments. It does not matter whether the deci- 2.4 What (if any) connection to the jurisdiction is sions are of declaratory nature, grant specific performance, or required for your courts to accept jurisdiction for establish or alter a legal relationship. recognition and enforcement of a foreign judgment?

2.3 What requirements (in form and substance) must For the recognition and enforcement of a foreign judgment, it is a foreign judgment satisfy in order to be recognised and required that the debtor has his/her place of residence (or in case of enforceable in your jurisdiction? a company the registered seat) in Germany or that assets belonging to the debtor are located in Germany (Section 722 II ZPO). In the event that the debtor is neither domiciled in Germany nor has To be recognised, foreign judgments must be valid under the domestic assets, some legal authors advocate a substitute juris- law of the country in which they were rendered. In accordance diction for the courts at the seat of the Federal Government by with the majority view, they must also be final and not subject to applying Sections 15(2) and 27(2) ZPO mutatis mutandis. appeal. Therefore, interim measures are not recognisable under Section 328 ZPO. Section 328 ZPO sets out further conditions for the recogni- 2.5 Is there a difference between recognition and tion of foreign judgments. It stipulates that foreign judgments enforcement of judgments? If so, what are the legal are recognised, unless: effects of recognition and enforcement respectively? ■ The courts of the state to which the foreign court belongs do not have jurisdiction according to German law (Section German law distinguishes between recognition and enforcement. 328 I No. 1 ZPO). This means that if a German court had While recognition concerns the effects foreign judgments have in exclusive jurisdiction pursuant to German law, a foreign Germany, enforcement is a prerequisite to compulsory execution. judgment could not be recognised in Germany.

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According to the majority view, recognition entails that the 2.7 On what grounds can recognition/enforcement of a effects the foreign judgment has in the rendering state extend to judgment be challenged? When can such a challenge be the recognising state (so-called “Wirkungserstreckung”). However, made? this does not include effects that German law is not familiar with. If a foreign judgment is recognised, it has res judicata effect, The grounds for challenging recognition are listed in Section 328 i.e. German courts are bound by it and are barred from hearing ZPO (for further information see question 2.2). These grounds a claim on the same subject matter between the same parties. are exhaustive. The only substantive ground is the public Compulsory execution of a foreign judgment requires as policy exception contained in Section 328 I No. 4 ZPO. This a precondition that the foreign judgment is declared enforce- provision requires that the recognition of the judgment leads able by the competent German court (Section 722 ZPO). By to a result that would obviously be irreconcilable with funda- contrast, compulsory execution does not require that the judg- mental principles of German law, and in particular with funda- ment is recognisable under German law. Nevertheless, recog- mental rights. Courts have construed the public policy excep- nition and enforcement are closely linked, as foreign judgments tion restrictively. For example, US judgments awarding punitive can only be declared enforceable if the conditions for the recog- damages or which were based on pre-trial discovery have been nition of foreign judgments set out in Section 328 I ZPO are met recognised. By contrast, judgments obtained by fraud have been (Section 723 II 2 ZPO). declined recognition. Other examples, where German courts have declined recognition, include a serious violation of the 2.6 Briefly explain the procedure for recognising and right to be heard or the perversion of justice. enforcing a foreign judgment in your jurisdiction. The court cannot render a judgment declaring a foreign judgment enforceable if the prerequisites contained in Section 328 In Germany, recognition is granted ipso iure. Thus, a foreign ZPO are not fulfilled (Section 723 II 2 ZPO). In addition, the judgment is recognised automatically, i.e. without any judicial or respondent may raise defences based on events that occurred administrative procedure being required. However, the claimant after the foreign judgment was rendered (cf. Section 767 II ZPO), or respondent of the foreign proceedings may bring a positive or such as fulfilment of the payment obligation. negative declaratory action in accordance with Section 256 ZPO regarding recognition of the foreign judgment. 2.8 What, if any, is the relevant legal framework Compulsory execution of a foreign judgment requires formal applicable to recognising and enforcing foreign court proceedings, the so-called “exequatur” proceedings, which judgments relating to specific subject matters? are directed at declaring the foreign judgment enforceable (Section 722 ZPO). Sections 107–110 FamFG concern the recognition and enforce- The exequatur proceedings are adversarial proceedings and ment of family matters. Section 107 FamFG deals with the the general rules of jurisdiction apply. If the amount in dispute recognition of foreign decisions in marital matters. Recognition exceeds EUR 5,000, the regional court has subject matter juris- of such decisions is not granted automatically but requires diction. Otherwise, the district court is the competent court formal proceedings before the judicial administration of a to hear the case (cf. Sections 21 No. 1, 71 I Courts Constitution federal state. All other decisions that concern family matters Act). The regional or district court where the debtor has his within the meaning of Section 1 FamFG are recognised auto- habitual residence or, in the alternative, where the assets of the matically pursuant to Section 108 I FamFG. Sections 108 IV, debtor are located, has local jurisdiction (Sections 722 II, 802 109 I FamFG are identical to the grounds contained in Section ZPO). In proceedings before regional courts, each party must 328 I ZPO. Section 110 FamFG deals with the enforceability be represented by a lawyer (Section 78 I 1 ZPO). of foreign decisions in family matters. Section 110 I and III Together with the application for enforcement for which no FamFG is identical to Sections 722 I and II, 723 II ZPO. specific forms have to be filed, the person seeking to enforce a Pursuant to Section 343 I of the Insolvency Statute (“InsO”), foreign judgment must provide a certified copy of the judgment the opening of foreign insolvency proceedings shall be recog- (Sections 415, 435 ZPO). A translation is generally not required. nised, unless the courts of the state of the opening of proceed- However, the court may order the applicant to provide a trans- ings do not have jurisdiction in accordance with German law, or lated copy of the judgment (Section 142 III ZPO). It is recom- recognition is contrary to public policy. Section 353 InsO governs mended to at least provide a certified translation of the operative the enforceability of foreign judgments rendered in foreign insol- part of the judgment. As foreign judgments are not presumed vency proceedings. Compulsory execution of such judgments to be authentic (cf. Section 438 I ZPO), it may be necessary to requires exequatur proceedings in which the foreign judgment is have the judgment legalised by a German diplomatic or consular declared enforceable by judgment. Pursuant to Section 353 I 2 agent (see Section 438 II ZPO). In states that are signato- InsO, Sections 722 II and 723 I ZPO shall apply mutatis mutandis. ries to the Hague Convention Abolishing the Requirement of The Hague Convention on Civil Procedure of 1 March 1954 Legalisation for Foreign Public Documents of 5 October 1961, deals in Articles 18 and 19 with the enforceability of foreign the competent foreign authority may issue an apostille instead. cost orders against claimants in their home states. Pursuant to As regards the further proceeding, the general rules set out Article 19 I of the Convention, the order for costs and expenses in the ZPO apply. Inter alia, there will be an oral hearing. The shall be rendered enforceable without a hearing, but subject to court will render its decision in the form of a judgment (Section subsequent appeal by the losing party. The application must be 722 I ZPO). The court can declare not only the entire judgment made through diplomatic channels but is free of charge (Article but also only parts of the judgment enforceable. 18 I of the Convention). Possible legal remedies against the judgment are: appeal on Article 31 III of the Convention on the Contract for the issues of fact and law (“Berufung”) before the higher regional International Carriage of Goods by Road of 19 May 1956 court in the district in which the court of first instance is (“CMR”) states that judgments rendered in accordance with the located (Section 511 et seq. ZPO); and appeal on points of law CMR are enforceable if the formal requirements in the enforce- (“Revision”) before the Federal Court of Justice (Section 542 ment state have been complied with. et seq. ZPO).

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2.9 What is your court’s approach to recognition and 32 Special Enforcement Regimes Applicable enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to Judgments from Certain Countries 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 foreign judgment is not recognised and declared enforceable substance) must the judgment satisfy in order to be recognised and enforceable under the respective regime? if it is irreconcilable with a German judgment or an earlier judgment of a foreign court (see Sections 328 I No. 3, 723 II 2 ZPO). A foreign judgment is not recognised and declared enforce- Among the multilateral conventions and bilateral treaties listed in able if German court proceedings have become pending before Section 1 above, the most important instrument is the New York the proceedings on which the judgment is based (see Sections Convention on the Recognition and Enforcement of Foreign 328 I No. 3, 723 II 2 ZPO). By contrast, proceedings pending Arbitral Awards of 10 June 1958 (“New York Convention”). before foreign courts are irrelevant. The Convention applies to the recognition and enforcement of foreign arbitral awards (see Section 1061 I 1 ZPO). Arbitral awards include partial awards, awards on costs and awards on 2.10 What is your court’s approach to recognition and agreed terms. By contrast, procedural orders and interim meas- enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a ures are not considered awards within the meaning of Section similar issue, but between different parties? 1061 ZPO. According to Section 1025 ZPO, an arbitral award qualifies as foreign if the seat of arbitration is located outside Germany. The award must also be final in its country of origin. In Germany, there is no révision au fond (see Section 723 I ZPO). Article VI (2) of the Treaty of Friendship, Commerce and This means that German courts generally do not review whether Navigation between the United States of America and the the judgment complies with German or foreign substantive law. Federal Republic of Germany of 29 October 1954 concerns the The wrong application of German law is thus irrelevant for enforcement of foreign arbitral awards. Due to its limited rele- enforcing the judgment. However, the foreign judgment is not vance, it will not be discussed in further detail below. recognised and declared enforceable if it is contrary to public With respect to all other instruments mentioned in Section 1, policy (Section 328 I No. 4 ZPO; see question 2.5 above). Section 3 will be limited to pointing to important differences in A prior judgment on the same or a similar issue between comparison to the general recognition and enforcement regime different parties does not hinder the recognition and enforce- under Sections 328, 722, 723 ZPO discussed in Section 2. ment of a foreign judgment. As stated above, there are only limited grounds on which recognition and enforcement can be refused (see Section 328 I ZPO). A conflicting judgment 3.2 With reference to each of the specific regimes set between different parties is not one of them. 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 2.11 What is your court’s approach to recognition and enforcement? enforcement of a foreign judgment that purports to apply the law of your country? Like the default rules contained in Sections 328, 722, 723 ZPO, the New York Convention distinguishes between recognition and As stated above (see question 2.8), there is no révision au fond. enforcement. Both terms have the same meaning under the New This means that the German court cannot review whether the York Convention as they have in the ZPO. Recognition solely foreign court has applied German substantive law correctly. concerns the legal effects of foreign arbitral awards, whereas enforcement relates to the compulsory execution of foreign arbi- 2.12 Are there any differences in the rules and tral awards after they have been declared enforceable. procedure of recognition and enforcement between the various states/regions/provinces in your country? 3.3 With reference to each of the specific regimes set Please explain. out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. There are no differences in the rules and procedure in the sixteen federal states as the ZPO is federal law and therefore Recognition and enforcement of foreign arbitral awards applies nationwide. are governed by Section 1061 et seq. ZPO and the New York Convention. 2.13 What is the relevant limitation period to recognise Foreign arbitral awards are recognised automatically. and enforce a foreign judgment? Enforcement, i.e. compulsory execution, of a foreign arbitral award requires that the award has been declared enforceable by There is no limitation period regarding bringing an action to court order. declare a judgment enforceable. However, claims that have The applicant wishing to enforce an arbitral award must bring been declared final and absolute are time-barred after 30 years an action before the Higher Regional Court where the party (Section 197 I No. 3 Civil Code (“BGB”)). This also includes opposing the application has his place of business or habitual claims which were awarded by arbitral tribunals. residence or where his assets are located (Section 1062 III ZPO). The application must be made in writing or put on record at the court registry (Section 1063 IV ZPO). The applicant must

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submit a signed copy, a certified copy, and for each respondent refused on the grounds set out in Article V of the New York a simple copy of his application. The documents to be accom- Convention. These include: panied with the application include the original award or a certi- ■ lack of a valid arbitration agreement; fied copy of the award (Section 1064 I 1 ZPO). The certifica- ■ violations of the right to be heard; tion may be issued by the lawyer representing the applicant in ■ excess of authority; the enforcement proceedings (Section 1064 I 2 ZPO). A trans- ■ irregularities in the constitution of the arbitral tribunal or lation of the award is not mandatory. Nevertheless, it is recom- the proceedings; mended to provide a certified translation of, at least, the oper- ■ lack of a final and binding award; ative part of the award. In any case, the court may order the ■ lack of objective arbitrability; and applicant to provide a certified translation of the entire award ■ violation of public policy. (Section 142 III ZPO). The applicant does not have to enclose a Beyond these grounds, no further review of the award is copy of the arbitration clause. However, the court may order the possible. In particular, there is no révision au fond. applicant to produce the arbitration clause if it deems it neces- The lack of objective arbitrability and the violation of public sary (Section 142 I ZPO). policy are grounds that must be considered by the court ex officio. The proceedings are not ex parte proceedings. The opposing The other grounds must be pleaded by the party who relies on party must be given an opportunity to be heard (Section 1063 I them. 2 ZPO). With the service of the action, the court will set a time limit to respond. In general, it is within the discretion of the court 42 Enforcement to order an oral hearing. However, an oral hearing is mandatory if the party opposing the application raises one of the grounds for 4.1 Once a foreign judgment is recognised and setting aside the award contained in Section 1059 II ZPO (Section enforced, what are the general methods of enforcement 1063 II ZPO) or if one of the parties requests an oral hearing. available to a judgment creditor? The parties must generally not be represented by counsel. If the court, however, orders an oral hearing, representation by Irrespective of the methods of enforcement, compulsory counsel is mandatory. In any case, representation by counsel is enforcement generally requires – in addition to the judg- recommended. ment declaring the foreign judgment or foreign arbitral award The court will render its decision in the form of an order enforceable – that a court has rendered a certificate of enforce- (Section 1063 I 1 ZPO). This court order is to be declared provi- ability and that the judgment declaring the foreign judgment or sionally enforceable (Section 1064 II ZPO). In case of a nega- foreign arbitral award enforceable has been duly served on the tive decision, the court issues an order declaring that the award debtor. Moreover, there are specific requirements that have to is not recognised in Germany (Section 1061 II ZPO). be observed with regard to the respective enforcement measures. The decision can be appealed on a point of law For the enforcement of monetary judgments, the debtor may (“Rechtsbeschwerde”) before the Federal Court of Justice (Sections choose from three different enforcement measures: (1) attach- 1065 I, 1062 I No. 4 ZPO). ment of movable property; (2) attachment of claims of the The Law on the Implementation of International Treaties and debtor against third parties and other rights of the debtor; and Conventions of the European Union in the Area of Recognition (3) seizure of immovable property. and Enforcement of Judgments in Civil and Commercial Matters of 30 November 2015 (“AVAG”), which applies to recognition and enforcement proceedings under the Treaty between Germany 52 Other Matters and Israel, provides for simplified and expedited enforcement proceedings. The proceedings are ex parte proceedings and an 5.1 Have there been any noteworthy recent (in the oral hearing generally does not take place. The competent court last 12 months) legal developments in your jurisdiction decides by court order that the court certificate of enforcea- relevant to the recognition and enforcement of foreign bility (“Vollstreckungsklausel”) is to be issued. Similar expedited judgments? Please provide a brief description. proceedings are foreseen in the German law implementing, inter alia, the Hague Convention on the Recognition and Enforcement During the last 12 months, German courts only rendered a of Decisions relating to Maintenance Obligations of 2 October limited number of noteworthy decisions relevant to the recog- 1973 and the Hague Convention on the International Recovery nition and enforcement of foreign judgments or arbitral awards. of Child Support and Other Forms of Family Maintenance of 23 The Regional Court Bremen had to decide on the recognition November 2007. and enforcement of a court order obtained in Baku (Azerbaijan) Under the treaty between Germany and Tunisia, the court by the claimant against the respondent (judgment of 3 April issues its decisions by way of court order. Sections 1063 I, 1064 2020 – 3 O 1581/18). When dealing with the requirement of II ZPO apply by reference in the implementation law. reciprocity pursuant to Section 328 I No. 5 ZPO (see question Article 24 of the Treaty between Germany and Israel contains 2.3), the Court found that reciprocity cannot merely be estab- a time limit for recognition and enforcement. It states that lished on the basis of textbooks or the foreign legal provi- the recognition and enforcement of a foreign judgment can be sions, but that one must also take the actual court practice into refused if 25 years have passed since the judgment was no longer account. In this regard, the Court found that it is, however, not subject to appeal. required that the other state, in this case Azerbaijan, had recognised German judgments or declared them enforceable in the past. Instead, reciprocity is to be affirmed if it results from the 3.4 With reference to each of the specific regimes set foreign provisions and selectively found case law and if there out in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the is no indication that the foreign standards, which are generally special regime? When can such a challenge be made? friendly to recognition, are actually applied more restrictively than the German law in comparable cases. The Higher Regional Court Brandenburg had to decide, Recognition and enforcement of foreign arbitral awards can be pursuant to Sections 1061, 1064 ZPO, on the enforceability of

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a foreign arbitral award rendered under the Vienna Rules of 723 ZPO, the costs of the court amount to EUR 264 (KV No. Arbitration (decision of 20 May 2020 – 11 Sch 1/19). During the 1510 Law on Court Costs (“GKG”)). The court costs arising in arbitration proceedings, one of the respondents had objected enforceability proceedings under the New York Convention are against the jurisdiction of the sole arbitrator. However, the sole calculated on the basis of the amount in dispute, which in turn arbitrator deemed herself competent and ruled in favour of the depends on the claims submitted for enforcement. They are to claimant. The Austrian Supreme Court confirmed the jurisdic- be determined in accordance with KV No. 1620 GKG. If, for tion of the sole arbitrator and dismissed the action for annul- example, the amount in dispute is EUR 10 million, the court ment of the respondents. The Court found that the respond- costs are approximately EUR 75,000. ents were precluded with their objection against the jurisdiction Attorneys may conclude fee agreements with their clients that of the sole arbitrator also in the recognition and enforcement deviate from the attorney fees that are reimbursable in court proceedings as they did not raise it in their first pleading on the proceedings. However, they cannot agree on fees that are lower merits during the arbitration proceedings. Moreover, the Court than the reimbursable fees (Section 49b I Federal Lawyers’ Act found that if a foreign court (in this case the Austrian Supreme (“BRAO”)). Agreements on success fees are not permitted Court) has confirmed the jurisdiction of the arbitral tribunal in (Section 49b II BRAO) unless the client would otherwise be the annulment proceedings, German courts are bound by this in deterred from taking legal proceedings due to his economic situ- the recognition and enforcement proceedings. ation (Section 4a Law on Remuneration of Attorneys (“RVG”)). The reimbursable fees are calculated on the basis of the amount in dispute and determined in accordance with the RVG. The 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking relevant fee numbers are Nos 3100, 3104 VV RVG. If, for to recognise and enforce a foreign judgment in your example, the amount in dispute is EUR 10 million, the attorney jurisdiction? fees for each side are approximately EUR 100,000 (in case a hearing takes place). It is hard to predict the duration of enforcement proceed- In German court proceedings, the costs of the proceedings, ings under Sections 722, 723 ZPO and under the New York including the costs of the court and the attorney fees, are allo- Convention. Various factors will have an impact on the length cated in accordance with Section 91 et seq. ZPO. Section 91 I 1 of the proceedings. The length, inter alia, depends on whether ZPO contains the principal allocation rule that costs follow the the respondent raises grounds to refuse enforcement and event. This means that the losing party must bear the costs of whether an oral hearing takes place. Enforceability proceedings the court, the reimbursable attorney fees of the other side as well regarding foreign judgments under Sections 722, 723 ZPO and as its own attorney fees. foreign arbitral awards under the New York Convention most Costs arising in exequatur proceedings under Sections 722, 723 likely last between six to 18 months. In the meantime, the party ZPO and under the New York Convention consist of court costs seeking to enforce a foreign arbitral award may seek interim and attorney fees. In exequatur proceedings under Sections 722, relief pursuant to Section 1063 III ZPO.

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Dr. Nils Schmidt-Ahrendts primarily acts as arbitrator and counsel in domestic and international arbitration proceedings. He has been involved in proceedings under the rules of the ICC, DIS, SCC and LCIA as well as in ad hoc proceedings. Nils also represents international and domestic clients in proceedings before German courts and assists them with the enforcement of foreign awards and judgments. His focus lies in the areas of international trade, sales law, construction law, corporate law, energy, infrastructure and post-M&A. Nils holds a Doctor of Laws in international sales law (CISG). Before joining Hanefeld Rechtsanwälte, he worked for several years with CMS Munich in the team of Dr. Klaus Sachs. Nils is a visiting professor on arbitration and CISG at the Universities of Berlin and Freiburg. He regularly speaks at international conferences and is the author of a number of publications.

Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft Tel: +49 40 1804 8293 0 mbH Email: [email protected] Brooktorkai 20 URL: www.hanefeld-legal.com 20457 Hamburg Germany

Dr. Johanna Büstgens acts as counsel in arbitration and state court proceedings. She also acts as arbitrator and as secretary to arbitral tribunals in large-volume and complex proceedings. The focus of her practice is energy law (in particular disputes involving long-term energy supply contracts and price adjustments), construction & engineering (including FIDIC model contracts), international trade and distribution law and international commercial and sales law. Johanna studied at the Bucerius Law School and the University of Oxford (Brasenose College). She holds a doctorate of law from Bucerius Law School in the field of international arbitration, for which she completed a research stay at the University of California, Berkeley. She completed her legal traineeship, inter alia, at the ICC International Court of Arbitration in Paris. She has also previously worked as a research assistant at a chair for private international and international commercial law at Bucerius Law School.

Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft Tel: +49 40 1804 8293 0 mbH Email: [email protected] Brooktorkai 20 URL: www.hanefeld-legal.com 20457 Hamburg Germany

Hanefeld Rechtsanwälte is Germany’s premier dispute resolution boutique courts. Dr. Friedrich Rosenfeld is the firm’s investment arbitration expert and has offices in Hamburg and Paris. It has received accolades across and also regularly acts as arbitrator and counsel in commercial matters. jurisdictions. Its clients benefit amongst others from its independent Jörn Hombeck primarily acts as counsel in German state court and arbitra- structure and its familiarity with all relevant perspectives of dispute reso- tion proceedings and also has vast experience in DAB proceedings. lution, the perspective of counsel, arbitrators and arbitral institutions. Dr. www.hanefeld-legal.com Inka Hanefeld, LL.M. (NYU) is one of the most in-demand female arbitrators worldwide and a former Vice President of the ICC International Court of Arbitration. Jan Heiner Nedden has managed more than 1,000 arbitration matters during his time with the ICC and has now a record of more than 70 cases as arbitrator after joining the firm in 2011. Dr. Nils Schmidt-Ahrendts has been recognised by his peers as the shooting star of the German arbitration scene and has acted as arbitrator and counsel in numerous ICC, LCIA, SCC and DIS arbitrations, as well as counsel before German state

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India India

Manisha Singh

LexOrbis Varun Sharma

12 Country Finder execution proceedings under Section 44-A in case of reciprocating territories. If the judgment has not originated from a reciprocating territory, such foreign judgment can be enforced by insti- 1.1 Please set out the various regimes applicable to tuting a civil suit on the judgment. recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply. 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?

Applicable Law/ Relevant Corresponding Any judgment, which is “conclusive” as to any matter directly Statutory Regime Jurisdiction(s) Section Below adjudicated upon between the same parties or between parties India is not part under whom they or any of them claim litigating under the of any regime or same title, is capable of recognition and enforcement in India. convention on The law on foreign judgments in India does not specify the enforcement of types of judgments that are regarded as “conclusive”. Rather, foreign judgments. Section 13 provides the types of judgments that are not consid- The United ered as conclusive and, thus, precluded from enforcement. The Kingdom, Aden, following judgments are not conclusive: Fiji, the Republic (a) where it has not been pronounced by a court of competent Reciprocating of Singapore, the jurisdiction; Bilateral Federation of (b) where it has not been given on the merits of the case; Agreements: Malaya, Trinidad (c) where it appears on the face of the proceedings to be India has executed and Tobago, New founded on an incorrect view of international law or a bilateral treaties Zealand, the Cook refusal to recognise the law of India in cases in which such Sections 13 and with various coun- Islands (including law is applicable; 44-A of the CPC. tries in respect of Niue), the Trust (d) where the proceedings in which the judgment was obtained reciprocal arrange- Territories of are opposed to natural justice; ments in enforce- Western Samoa, (e) where it has been obtained by fraud; and ment of judgments Hong Kong, Papua (f) where it sustains a claim founded on a breach of any law in and decrees. New Guinea, force in India. Bangladesh and From the various decisions of courts in India, interlocutory the United Arab orders on costs, jurisdiction, divorce decrees, monetary judg- Emirates. ments, mandatory injunctions and anti-suit injunctions are enforceable in India. Even ex parte decisions are enforceable if General Regime: All countries with the procedure of the trial has been followed and the judgment Code of Civil which bilateral Sections 13 and holder proved its case even in the absence of a defence. Procedure, 1908 agreements have 44-A of the CPC. On the other hand, default judgments, judgments from (CPC). not been executed. summary or special procedures, formal judgments and judgments imposing punitive damages and penalties or quasi-judicial 22 General Regime orders have been held to be unenforceable in India.

2.1 Absent any applicable special regime, what is the 2.3 What requirements (in form and substance) must legal framework under which a foreign judgment would a foreign judgment satisfy in order to be recognised and be recognised and enforced in your jurisdiction? enforceable in your jurisdiction?

Section 44-A read with Section 13 of the CPC govern the recogni- As noted above, the foreign judgment must be conclusive and tion and enforcement of foreign judgments and decrees in India. must not fall within any of the exceptions set out in Section 13 A foreign judgment which does not fall under the exceptions of the CPC. given in Section 13 of the CPC can be enforced by instituting

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2.4 What (if any) connection to the jurisdiction is ■ The decree holder can apply to the court to provide direc- required for your courts to accept jurisdiction for tions to the judgment debtor, instructing it to disclose any recognition and enforcement of a foreign judgment? assets and liabilities. If these assets are disclosed, the court will proceed with the attachment and sale of such assets. All courts in India have jurisdiction to recognise and enforce Non-reciprocating territory: the judgment holder must file a foreign judgment. There is no requirement to establish any suit on the foreign judgment or decree. Only once the suit is connection to the jurisdiction except that the court in India in allowed and decreed can it be executed as a domestic decree in which a foreign judgment is being enforced has both territo- terms of Order 21 of the CPC. rial and pecuniary jurisdiction to enforce it. For example, the courts having territorial jurisdiction over the place of business 2.7 On what grounds can recognition/enforcement of a or residence of the defendant would have jurisdiction to enforce judgment be challenged? When can such a challenge be a foreign judgment against that defendant. made?

2.5 Is there a difference between recognition and Recognition/enforcement of a foreign judgment can be chal- enforcement of judgments? If so, what are the legal lenged by objecting that the judgment falls within the excep- effects of recognition and enforcement respectively? tions set out in Section 13 of the CPC as follows: ■ the foreign judgment does not conform to public policy Recognition and enforcement of foreign judgments have different and is fraudulent; legal effects. Recognition of a foreign judgment is accom- ■ the foreign judgment was not issued by a court of compe- plished once the court determines such judgment as conclu- tent jurisdiction; sive by confirming that it does not fall within the exceptions ■ the foreign judgment is not based on the merits of the case; provided in Section 13 of the CPC as noted above. Recognition ■ the foreign judgment was passed in disregard of Indian law of a foreign judgment can have the legal effect of res judicata and or based on an incorrect view of international law; as a pre-requisite for enforcing the same. It must, however, be ■ the foreign judgment contravenes the principles of natural enforced by a separate legal process as provided in Section 44A justice or is in breach of any law in force in India; or of the CPC for reciprocating territories or by filing a civil suit if ■ the application is time-barred. the foreign judgment was not issued in a reciprocating territory. 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign 2.6 Briefly explain the procedure for recognising and judgments relating to specific subject matters? enforcing a foreign judgment in your jurisdiction.

There are no separate legal frameworks applicable to recognising There is no separate process for recognition of a foreign judg- and enforcing foreign judgments relating to specific subject matters. ment. The court enforcing the foreign judgment first recognises the foreign judgment and if such judgment does not fall within the exceptions of Section 13 of the CPC, proceeds with 2.9 What is your court’s approach to recognition and its enforcement. The process of enforcement for a reciprocating enforcement of a foreign judgment when there is: (a) a territory is different from the process for a non-reciprocating conflicting local judgment between the parties relating territory as follows: to the same issue; or (b) local proceedings pending between the parties? Reciprocating territory: the decree holder must file an application for execution of the foreign judgment or decree in the competent Indian court (Order 21 of the CPC). A certified copy In case there exists a conflicting local judgment between the of the decree and a certificate from the superior court of the parties relating to the same issue, the principle of res judicata shall foreign country stating the amount, if any, that has been satis- apply. If a local judgment has already decided an issue, the court fied under the decree must also be submitted. may refuse to recognise the later foreign judgment in view of Following the application, the executing court will call on the public policy and also on the ground that it contravenes the prin- judgment debtor to show cause against execution of the decree. ciples of natural justice or is in breach of any law in force in India. At this stage, the judgment debtor has the right to object to Even in case local proceedings are pending between the enforcement on the ground that the judgment offends any of parties, the principle of res judicata would apply equally where the conditions specified in Section 13 of the CPC. the issue has already been adjudicated by the foreign judgment. The various stages in an execution proceeding instituted in India in order to enforce a decree under Section 44A of the CPC 2.10 What is your court’s approach to recognition and are as follows: enforcement of a foreign judgment when there is a ■ Application for execution: the decree holder must file an conflicting local law or prior judgment on the same or a application for execution of the decree before the compe- similar issue, but between different parties? tent court under Order 21 of the CPC. ■ Notice to show cause: the court will then issue notice to As noted above, an Indian court may refuse to recognise a the person against which execution is sought, requiring it foreign judgment if it is in disregard to Indian law or is in breach to show cause as to why the decree should not be executed. of any law in force in India. This is one of the grounds under ■ No contest: if the person against which the decree is to Section 13 of the CPC, which provides exceptions to recogni- be executed does not appear or show cause as to why the tion of a foreign judgment in India. decree should not be executed, the court will recognise and Judgments of High Courts and the Supreme Court of India enforce the foreign decree as if it were a judgment of the have precedence value on inferior courts. Thus, if there is a prior Indian court and will allow the decree holder to execute judgment on the same or similar issue albeit between different the judgment against the assets of the judgment debtor. parties passed by any High Court or the Supreme Court of India,

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it may become a ground to refuse recognition of a foreign judg- 3.3 With reference to each of the specific regimes set ment by an inferior court or another concurrent High Court. out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. 2.11 What is your court’s approach to recognition and enforcement of a foreign judgment that purports to Same as above. apply the law of your country?

3.4 With reference to each of the specific regimes set A foreign judgment that purports to apply Indian law would out in question 1.1, on what grounds can recognition/ have the same effect as any other foreign judgment applying law enforcement of a judgment be challenged under the of some other country. The only exceptions to recognition of a special regime? When can such a challenge be made? foreign judgment by an Indian court are enumerated in Section 13 of the CPC. Same as above.

2.12 Are there any differences in the rules and 42 Enforcement procedure of recognition and enforcement between the various states/regions/provinces in your country? 4.1 Once a foreign judgment is recognised and Please explain. enforced, what are the general methods of enforcement available to a judgment creditor? No, there are no differences in the rules and procedures of recognition and enforcement between the various states in India. In case the foreign judgment arises from a reciprocating territory, a judgment creditor has same methods available to enforce 2.13 What is the relevant limitation period to recognise the judgment as if the foreign judgment had been passed by an and enforce a foreign judgment? Indian court. That is to say, the judgment creditor can directly file an execution petition. In Bank of Baroda v Kotak Mahindra (Civil Appeal no. 2175 of 2020), In case the foreign judgment arises from a non-reciprocating the Hon’ble Supreme Court of India has observed that the limi- territory, a judgment creditor can file a civil suit and once a judg- tation period will be based on the statute of limitations that ment is passed by an Indian court in favour of the judgment prevails in the country where the judgment has been passed, i.e. creditor, the judgment creditor can enforce the decree in the ex causae. In case the decree holder first takes step to execute the same way by filing an execution petition. decree in the country where it has been passed and the decree is By way of execution, the judgment creditor can apply to the not fully satisfied, a petition for execution in India can be filed court to provide directions to the judgment debtor, instructing within three years of finalisation of the execution proceedings it to disclose any assets and liabilities and the court will proceed in the country where judgment has been passed. with the attachment and sale of such assets. For a non-reciprocating territory, a foreign judgment may be enforced by filing a new suit in an Indian court within a period 52 Other Matters of three years as specified under the Limitation Act, 1963, commencing from the date on which the judgment was passed 5.1 Have there been any noteworthy recent (in the by the foreign court. last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign 32 Special Enforcement Regimes Applicable judgments? Please provide a brief description. to Judgments from Certain Countries There has been a recent noteworthy development regarding enforcement of an anti-suit injunction passed by a court in 3.1 With reference to each of the specific regimes China. In this recent case, viz., Interdigital Technolog y v Xiaomi set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to Corporation & Ors., the Delhi High Court refused to enforce be recognised and enforceable under the respective the anti-suit injunction granted by the Chinese court. In fact, regime? the Delhi High Court granted an “anti anti-suit injunction”. In other words, the question before the Delhi High Court was not whether an anti-suit injunction may be enforced. Rather, As noted above, India is not a party to any specific regime or the Plaintiff, Interdigital Technology, requested to injunct the convention on enforcement of foreign judgments. By way of defendants beforehand from enforcing the anti-suit injunction bilateral agreements, India has reciprocal arrangements with few granted by the Chinese court. countries by which a foreign judgment can be directly enforced The Court held that in issuing the anti anti-suit injunction, the by way of execution, provided the judgment does not fall within court in India does not interfere with the sovereign jurisdiction the exceptions mentioned in Section 13 of the CPC as enumer- of a foreign judicial authority. It merely injuncts such enforce- ated hereinabove. ment, within its territories, of the order passed by the foreign judicial authority, by one of the parties before it, which divests 3.2 With reference to each of the specific regimes set the other party of a constitutional right, available to such other out in question 1.1, does the regime specify a difference party under the laws of this country. between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement?

Same as above.

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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?

In case of reciprocating territories, it is simple to enforce a judgment. However, it is crucial to ensure that the foreign judgment does not fall within any of the exceptions listed in Section 13(a) to (f) of the CPC. For non-reciprocating territories, since a civil suit is to be filed first, there is a possibility that it may take two to three years before the foreign judgment is confirmed by an Indian court. It is important that all relevant documentation is provided by the judgment creditor and a specialised legal counsel is appointed for this purpose.

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Manisha Singh is a co-founder and the Managing Partner of the firm. She overviews and supervises all practice groups at the firm. Manisha is known and respected for her deep expertise on prosecution and enforcement of all forms of IP rights and for strategising and managing global patents, trademarks and designs portfolios of large global and domestic companies. Her keen interest in using and deploying the latest technology tools and processes has immensely helped the firm to develop efficient IP service delivery models and to provide best- in-class services. She is also known for her sharp litigation and negotiation skills. She has been involved in and has successfully resolved various trademarks, copyright and design infringement and passing-off cases in short timeframes and in the most cost-efficient manner, applying out-of-box strategies and thinking. She is a member of several international IP associations, such as AIPLA, AIPPI, APAA, ECTA, FICPI, INTA, LESI and MARQUES, and actively participates in the committee works of these organisations.

LexOrbis Tel: +91 11 2371 6565 709–710 Tolstoy House, 15–17 Tolstoy Marg Email: [email protected] New Delhi-110001 URL: www.lexorbis.com India

Varun Sharma holds a Bachelor of Technology (B.Tech.) degree in Electronics & Communications and a degree in Law from the University of Delhi. His experience includes appearing before various Courts of Law in India, the Intellectual Property Appellate Board and various other tribunals and adjudicatory bodies. Particular to the field of IP Rights, his experience includes drafting, filing and prosecuting patents, trademarks, design and copyright applications for various multi-national companies. He was also selected by the Government of India for training of Patent Experts (IPPE 2011) conducted by the Japan Institute of Invention and Innovation and the Japanese Patent Office. He underwent training programmes for 21 days in Tokyo, Japan, covering all aspects of patent law such as drafting, prosecution, enforcement and commercialisation of patents. Apart from his aforementioned areas of practice, Varun has also worked on the prosecution of various patent applications before the United States Patent and Trademark Office and the European Patent Office.

LexOrbis Tel: +91 11 2371 6565 709–710 Tolstoy House, 15–17 Tolstoy Marg Email: [email protected] New Delhi-110001 URL: www.lexorbis.com India

LexOrbis is a premier law firm, and one of the fastest growing Intellectual Property (IP) firms in India, with offices in three strategic locations: Delhi; Mumbai; and Bengaluru. With a team of over 90 highly reputed lawyers, engineers and scientists, we act as a one-stop shop and provide practical solutions and services on all IP and legal issues faced by technology companies, research institutions, universities, broadcasters, content developers and brand owners. Our services include Indian and global IP (patents/designs/trademark/ copyright/GI/plant varieties) portfolio development and management, advisory and documentation services on IP transactions/technology-content transfers, and IP enforcement and dispute resolutions at all forums across India. We have a global reach with trusted partners and associate firms. www.lexorbis.com

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 72 Chapter 13 Indonesia Indonesia

Nira Nazarudin

Oene Marseille

Soemadipradja & Taher Erie Hotman Tobing

12 Country Finder it can be used as prima facie evidence when freshly re-litigating the matter in the relevant Indonesian court.

1.1 Please set out the various regimes applicable to International arbitral award recognising and enforcing judgments in your jurisdiction The Indonesian Arbitration Law defines an award handed and the names of the countries to which such special regimes apply. down either by an arbitration institution or arbitrators outside Indonesia as being an international/foreign arbitral award. Indonesia is bound by the 1958 New York Convention on Applicable Law/ Relevant Corresponding the Recognition and Enforcement of Foreign Arbitral Awards Statutory Regime Jurisdiction(s) Section Below (“1958 New York Convention”). Therefore, any arbitral award issued in a country that is also a signatory to the 1958 New Indonesia is not a signatory to any multilateral or bilateral trea- York Convention may be recognised and enforced in Indonesia. ties that regulate the enforcement of foreign court judgments. However, enforcement in Indonesia is subject to certain admin- This means that judgments rendered by foreign courts are not istrative procedures required by the Indonesian Arbitration Law, enforceable in Indonesia (Article 436 (1) of the Reglement op de including international arbitral award registration and obtaining Rechtvordering (“RV”)). a writ of execution (known as an exequatur order) from the According to common practice, a party who has obtained a Central Jakarta District Court (“ ”). favourable foreign court judgment may file a fresh claim at the CJDC Once an exequatur order has been issued, the CJDC will relevant Indonesian court to re-litigate the case. As part of summon the defendants and order them to comply with the the fresh proceedings, the party may submit the foreign court arbitral award (known as aanmaning). If, after the aanmaning, judgment as prima facie evidence (Article 436 (2) of the RV). the defendants fail to comply with the arbitral award, execution Although not bound by foreign court judgments, when exam- will be commenced over the defendants’ assets by selling them ining cases Indonesian judges may exercise their broad discre- through private sale or public auction. tion to weigh the evidentiary value and relevance of any submitted foreign court judgments. In exercising such discretion, the court will examine whether the relevant foreign court 2.2 What constitutes a ‘judgment’ capable of judgment violated any principles of public order or public recognition and enforcement in your jurisdiction? policy in Indonesia. Please see our response to question 2.1. Note: As Indonesian law does not recognise “direct” enforcement of foreign court judgments, our responses below have mainly 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and focused on international arbitral award enforcement, bearing enforceable in your jurisdiction? the above principles in mind.

Foreign court judgment 22 General Regime Please see our response to question 2.1.

2.1 Absent any applicable special regime, what is the International arbitral award legal framework under which a foreign judgment would The Arbitration Law confirms Indonesia’s implementation of be recognised and enforced in your jurisdiction? the 1958 New York Convention, which allows a foreign (international) arbitral award to be enforced in Indonesia if it fulfils Foreign court judgment the following requirements and procedures: A foreign court judgment cannot be enforced in Indonesia, but

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a. the award must have been rendered by an arbitrator or After the award has been registered, the applicant must file an arbitration panel in a country that is bound to Indonesia application to obtain a writ of execution (exequatur order) from by a bilateral or multilateral treaty on the recognition and the CJDC Chairman. enforcement of international arbitral awards (i.e. the 1958 Once an exequatur order has been issued, the CJDC will New York Convention); summon the defendants and order them to comply with the b. the award must be within the scope of commercial law arbitral award (aanmaning order). If, after the aanmaning order, under Indonesian law; the defendants fail to comply with the arbitral award, execution c. the award does not contravene public order; will be commenced over the defendants’ assets by selling them d. the award must be registered at the CJDC; and through private sale or public auction. e. the award has obtained a writ of execution (exequatur order) from the CJDC Chairman. 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be 2.4 What (if any) connection to the jurisdiction is made? required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? Foreign court judgment Please see our response to question 2.1. Foreign court judgment Please see our response to question 2.1. International arbitral award The enforcement of an international arbitral award may be chal- International arbitral award lenged on grounds that it contravenes public policy or order. The award must have been rendered by an arbitrator or arbitra- In the absence of any detailed definition and guidelines on the tion panel in a country that is bound to Indonesia by a bilateral or interpretation of “public policy or order”, unsuccessful parties multilateral treaty on the recognition and enforcement of inter- to foreign arbitrations often seek to avoid award enforcement in national arbitral awards (i.e. the 1958 New York Convention). Indonesia by presenting arguments that enforcement would be against public policy or order. There is no specific timeframe as to when such challenge may 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal be submitted. effects of recognition and enforcement respectively? 2.8 What, if any, is the relevant legal framework Foreign court judgement applicable to recognising and enforcing foreign Please see our response to question 2.1. judgments relating to specific subject matters?

International arbitral award This is not applicable in our jurisdiction. Yes, the Arbitration Law distinguishes between recognition and enforcement of international arbitral awards. By signing the 1958 2.9 What is your court’s approach to recognition and New York Convention, Indonesia recognises international arbi- enforcement of a foreign judgment when there is: (a) a tral awards handed down in any country that is also a signatory. conflicting local judgment between the parties relating However, to be enforced, the international arbitral award must to the same issue; or (b) local proceedings pending meet the requirements set out in our response to question 2.3. between the parties?

2.6 Briefly explain the procedure for recognising and This is not applicable in our jurisdiction. enforcing a foreign judgment in your jurisdiction. 2.10 What is your court’s approach to recognition and Foreign court judgment enforcement of a foreign judgment when there is a Please see our response to question 2.1. conflicting local law or prior judgment on the same or a similar issue, but between different parties? International arbitral award The award must first be registered at the CJDC by the arbitrator This is not applicable in our jurisdiction. or the arbitrator’s proxy, attaching the following documents: (i) power of attorney from the arbitrator (if registered by the 2.11 What is your court’s approach to recognition and arbitrator’s proxy); enforcement of a foreign judgment that purports to (ii) certified true copy of the award, in accordance with the apply the law of your country? provisions on foreign document authentication, together with its official Indonesian translation; (iii) certified true copy of the underlying agreement, in accord- This is not applicable in our jurisdiction. ance with the provisions on foreign document authentication, together with its official Indonesian translation; and 2.12 Are there any differences in the rules and (iv) statement from the Indonesian embassy in the country procedure of recognition and enforcement between where the award was handed down, stating that the the various states/regions/provinces in your country? country is bound to Indonesia by a bilateral or multilateral Please explain. treaty on the recognition and enforcement of foreign arbitral awards (i.e. the 1958 New York Convention). No, there are no differences.

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2.13 What is the relevant limitation period to recognise International arbitral award and enforce a foreign judgment? After registering the award and obtaining an exequatur order, the CJDC will summon the defendants and order them to comply with the arbitral award (aanmaning order). If, after the aanmaning There is no limitation period to recognise and enforce either a order, the defendants fail to comply with the arbitral award, foreign court judgment or an international arbitral award. execution will be commenced over the defendants’ assets by selling them through private sale or public auction. 32 Special Enforcement Regimes Applicable to Judgments from Certain Countries 52 Other Matters

3.1 With reference to each of the specific regimes 5.1 Have there been any noteworthy recent (in the set out in question 1.1, what requirements (in form last 12 months) legal developments in your jurisdiction and substance) must the judgment satisfy in order to relevant to the recognition and enforcement of foreign be recognised and enforceable under the respective judgments? Please provide a brief description. regime?

There have been no noteworthy recent legal developments in This is not applicable in our jurisdiction. our jurisdiction in the last 12 months.

3.2 With reference to each of the specific regimes set 5.2 Are there any particular tips you would give, or out in question 1.1, does the regime specify a difference critical issues that you would flag, to clients seeking between recognition and enforcement? If so, what is the to recognise and enforce a foreign judgment in your difference between the legal effect of recognition and jurisdiction? enforcement?

This is not applicable in our jurisdiction. Foreign court judgment A winning party who wishes to enforce a foreign court judgment should bear in mind that the judgment is not enforceable 3.3 With reference to each of the specific regimes set in Indonesia. The party can only freshly litigate the case (that out in question 1.1, briefly explain the procedure for was the subject of the foreign court judgment) before the rele- recognising and enforcing a foreign judgment. vant Indonesian courts, and submit the foreign court judgment as evidence. As Indonesian judges are not bound by foreign This is not applicable in our jurisdiction. court judgments, and may exercise their discretion in weighing any foreign court judgments’ evidentiary value, the outcome of any such re-litigation may be unpredictable. 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 International arbitral award special regime? When can such a challenge be made? Enforcement of an international arbitral award may be subject to challenge on the grounds that it contravenes public policy or order. In the absence of any detailed definition and guidelines This is not applicable in our jurisdiction. on the interpretation of “public policy or order”, unsuccessful parties to foreign arbitrations often seek to avoid award enforce- 42 Enforcement ment in Indonesia by raising public policy and order arguments.

4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor?

Foreign court judgment Once the Indonesian court renders a decision in the relevant case, supported by the foreign court judgment as evidence of the claim, the winning party may proceed to enforce the Indonesian court judgment in accordance with the Indonesian Civil Procedural Law (subject to appeal filed by the losing party).

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Nira Nazarudin is a partner at S&T who specialises in commercial litigation and dispute resolution across a wide range of legal areas. She has considerable experience representing international and domestic clients in handling complex commercial disputes before Indonesian courts, as well as in domestic and international arbitrations.

Soemadipradja & Taher Tel: +62 21 5099 9879 Wisma GKBI, Level 9 Email: [email protected] Jl. Jend. Sudirman No. 28 URL: www.soemath.com Jakarta 10210 Indonesia

Oene Marseille is a partner of leading Singaporean law firm Allen & Gledhill (“A&G”) currently assigned to S&T as part of the strategic alliance between S&T and A&G. His main practice areas are mergers and acquisitions and corporate and commercial transactions.

Soemadipradja & Taher Tel: +62 21 5099 9879 Wisma GKBI, Level 9 Email: [email protected] Jl. Jend. Sudirman No. 28 URL: www.soemath.com Jakarta 10210 Indonesia

Erie Hotman Tobing is a partner of S&T’s dispute resolution and litigation practice, whose main areas of practice include commercial litigation, general litigation and alternative dispute resolution. Other specialities include bankruptcy and suspension of payments, maritime, banking & finance, construction and commercial transactions.

Soemadipradja & Taher Tel: +62 21 5099 9879 Wisma GKBI, Level 9 Email: [email protected] Jl. Jend. Sudirman No. 28 URL: www.soemath.com Jakarta 10210 Indonesia

Established in 1991, Soemadipradja & Taher (“S&T”) is consistently ranked top tier among Indonesian law firms. Our firm consists of 10 partners, two foreign counsels, one special counsel and 35 associates. Through the collective expertise of our partners, counsels and lawyers, a wealth of experience representing corporate clients, and an ability to look beyond traditional approaches and think creatively, we assist national, foreign and multinational clients to achieve their business objectives in Indonesia. As specialists in providing corporate legal services, we understand our clients’ businesses, industries and corporate goals, ensuring that we provide the most appropriate legal solutions adjusted to our clients’ needs, while applying the highest ethical and professional standards. S&T has formed a strategic alliance with Allen & Gledhill of Singapore, and maintains relationships with a number of leading regional and international law firms. www.soemath.com

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Micael Martina Montinari Lucenti

Filippo Claudia Portolano Cavallo Frigerio Rivieccio

12 Country Finder Argentina, Brazil, China, Egypt, Bilateral conven- Kuwait, Lebanon, 1.1 Please set out the various regimes applicable to tions on mutual Section 3. Moldova, Morocco, recognising and enforcing judgments in your jurisdiction judicial assistance. and the names of the countries to which such special Russia, Tunisia and regimes apply. Turkey.

Applicable Law/ Relevant Corresponding 22 General Regime Statutory Regime Jurisdiction(s) Section Below All jurisdictions for 2.1 Absent any applicable special regime, what is the which no EU, bilat- legal framework under which a foreign judgment would Law no. 218 of 31 eral or multilat- Section 2. be recognised and enforced in your jurisdiction? May 1995. eral convention is applicable. Absent any applicable special regime, recognition and enforce- All jurisdictions for ment of non-EU foreign judgments are governed by Law no. Sections 474–632 which no EU, bilat- 218/1995 (“Law 218/1995”) and the provisions of the Civil of the Italian Civil eral or multilat- Section 2. Procedure Code (“CPC”). Procedural Code. eral convention is applicable. 2.2 What constitutes a ‘judgment’ capable of State parties to multi- recognition and enforcement in your jurisdiction? lateral conventions including: Under the Italian legal system, a “judgment” capable of recogni- ■ The European Free tion and enforcement is any judgment, whatever it may be called Trade Association including a decree, order or decision, which results in the deter- Convention on mination, constitution, modification or extinction of rights, Jurisdiction and capacities or interests. Enforcement of To be considered as such, the judgment shall be in a written Judgments in Civil and form, duly issued by a judicial body and shall be final (i.e. it must Commercial Matters no longer be subject to appeal or amendments). of 2007 (Lugano Convention). 2.3 What requirements (in form and substance) must ■ The Hague a foreign judgment satisfy in order to be recognised and Convention of Multilateral enforceable in your jurisdiction? 30 June 2005 on Section 3. conventions. Recognition and Unless bilateral or multilateral agreements are applicable, under Enforcement of Section 64 of Law 218/1995, a foreign court judgment can be Foreign Judgments in recognised in Italy if the following requirements are met: Civil and Commercial (i) The court that issued the decision should have had the Matters. jurisdiction to decide on the case, in accordance with ■ The Convention on Italian laws. the Contract for the (ii) The first claim deed should have been correctly served on International Carriage the defendant in accordance with the other State rules and of Goods by Road of the defendant’s defensive rights must be respected. 19 May 1956. (iii) The parties should have appeared before the court or ■ The Convention the absentia of one of them should have been declared in concerning accordance with the foreign country law. International Carriage (iv) The decision must be final in accordance with the foreign by Rail of 9 May 1980. law.

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(v) The foreign decision must not conflict with an Italian evidentiary issues, always ensuring the respect of due process court’s final decision. and equitable treatment of all parties. (vi) No proceedings are pending before an Italian court The Court of Appeal’s decision declaring or denying the between the same parties and on the same dispute, which foreign judgment that is recognised and enforceable can be chal- were initiated before the foreign proceedings. lenged before the Supreme Court, on limited grounds, within 60 (vii) There is no conflict with Italian public policy principles. days of service of the relevant decision. Once the judgment has been recognised, the enforcement phase can begin. This phase includes the following steps: 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for (i) Apposition of the execution order formula. recognition and enforcement of a foreign judgment? (ii) Serving on the debtor the enforceable title (i.e. the judgment with the execution order formula) and the “atto di prec- etto” (i.e. a specific warning of payment announcing the will Italian courts shall have jurisdiction when the judgment to be to proceed with the execution in accordance with the jurid- recognised must produce its effects in Italy. In this case, the ical decision). competent court is the one of the place where enforcement should (iii) Execution. take its effect (for instance, if the recognition of the judgment aims (iv) Selling of the distrained goods and awarding of the sums at the return of real estate, then the application must be submitted (or awarding of the sums distrained to the third creditor of to the Court of Appeal of the court where the real estate is located). the debtor, e.g. banks or employers).

2.5 Is there a difference between recognition and 2.7 On what grounds can recognition/enforcement of a enforcement of judgments? If so, what are the legal judgment be challenged? When can such a challenge be effects of recognition and enforcement respectively? made?

Yes, in the Italian legal system, recognition and enforcement are The judgment debtor may challenge recognition of non-EU different concepts. judgments when the judgment does not comply with one or Recognition allows the foreign judgment to be introduced more of the requirements for recognition set forth by Section into the Italian legal system, with the same effects it has in the 64 or 66 of Law 218/1995 (see question 2.3) within an ad hoc original jurisdiction. proceeding before the competent Court of Appeal (see Section While for some types of judgments (e.g. declarative judgments) 67 of Law 218/1995). recognition may be enough to satisfy the rights of the winning In the enforcement proceeding, the defendant can challenge: party, sometimes, to satisfy the party’s interest, compelling meas- (i) the right to proceed with enforcement or the existence ures are required. This is where enforcement comes into play. of the creditor’s right to proceed with enforcement; by Enforcement, indeed, is aimed at coercively obtaining a prac- appeal against enforcement (ITA: opposizione all’esecuzione) tical result equivalent to that which would be obtained if the (Sections 615 and 616 of the CPC); or debtor had fulfilled his obligations. The enforcement proce- (ii) procedural errors (i.e. the legality of the documents dure is carried out through the intervention of public bodies and involved in the enforcement procedure) by appeal against under the supervision of a judge who verifies compliance with enforceable acts (ITA: opposizione agli atti esecutivi ) (Sections the procedural rules laid down by law. 617 and 618 of the CPC).

2.6 Briefly explain the procedure for recognising and 2.8 What, if any, is the relevant legal framework enforcing a foreign judgment in your jurisdiction. applicable to recognising and enforcing foreign judgments relating to specific subject matters? Under Section 30 of Legislative Decree no. 150 of 2011, disputes concerning the recognition of foreign judgments and volun- Foreign judgments relating to the capacity of persons, the exist- tary jurisdiction measures referred to in Section 67 of Law ence of family relationships and personality (Section 65 of Law 218/1995 are governed by the summary procedure provided for 218/1995) as well as voluntary jurisdiction judgment (Section in Sections 702 et ff. of the CPC. 66) are automatically effective in Italy if: In a nutshell, to obtain recognition of a foreign judgment, the (i) The measure has been issued or produces effects in the applicant shall file its petition before the Court of Appeal of the State which would have jurisdiction under the criteria laid district of the place of enforcement. Along with the petition, the down in Law 218/95. applicant shall file: (ii) Essential rights of defence have been respected. (i) A certified copy of the judgment, duly apostilled or legal- (iii) There is no breach of public policy principles. ised, as the case may be, in accordance with the applicable convention, treaty or law, along with evidence that the judgment is final and binding between the parties. 2.9 What is your court’s approach to recognition and (ii) A certified translation of the judgment into Italian. enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating Following receipt of the petition, the court schedules the date to the same issue; or (b) local proceedings pending of the hearing for the parties’ appearance and discussion and between the parties? orders the applicant to provide to the service of process upon the defendant and grants the defendant a term for submitting its defence in writing (not less than 10 days before the hearing). As a general rule, a foreign judgment conflicting with another Under penalty of forfeiture, at this stage the defendant shall raise final and binding judgment issued by an Italian court shall not any possible objection to the recognition of the foreign judgment. be recognised in Italy (see Section 64(e) of Law 218/1995). The court is empowered to direct the proceedings in quite Likewise, under Section 64(f) of Law 218/1995, foreign judg- a flexible way with broad powers also in respect to potential ments shall not be recognised in Italy when an Italian proceeding

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involving the same parties exists and the same dispute – initiated Multilateral Convention before the foreign proceedings – is still pending. (i) Lugano Convention In case the foreign procedure is initiated first, the Italian court Under the Lugano Convention, judgments given in a may suspend the Italian pending procedure when the judgment Contracting State shall be automatically recognised in the resulting from the foreign procedure meets the requirements for other Contracting States. Any interested party who raises recognition (see Section 7 of Law 218/1995). the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of Title III of the Convention, 2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a apply for a decision that the judgment be recognised. The conflicting local law or prior judgment on the same or a Convention also identifies a number of other situations in similar issue, but between different parties? which recognition and enforcement may be refused (e.g. if the recognition of the judgment is manifestly contrary to public policy). The existence of a conflicting local law or prior judgment on the (ii) Hague Convention of 30 June 2005 same or a similar issue between different parties is not relevant The enforcement regime included in the 2005 Hague for the purposes of recognition of a foreign judgment. Convention only applies in the event of a judgment delivered by a court with jurisdiction based on an exclusive 2.11 What is your court’s approach to recognition and forum clause within the specific meaning of the conven- enforcement of a foreign judgment that purports to tion. In this context, the contracting parties are required to apply the law of your country? recognise and enforce judgments given by the designated court. However, they may postpone or refuse recognition The law applied by the foreign judgment, even if it is country law, or enforcement if an appeal against the judgment has been has no relevance in the recognition and enforcement process lodged in the State of origin or if the time limit for an since it does not involve an assessment on the merits. ordinary appeal has not yet expired. The Convention also identifies a number of other situations in which recognition and enforcement may be refused (e.g. if the judgment 2.12 Are there any differences in the rules and procedure of recognition and enforcement between was obtained by fraud). the various states/regions/provinces in your country? Please explain. Bilateral Convention (iii) Italy – Socialist Republics (Russia) Convention of 25 January 1979 No, the rules and procedures governing recognition and In 1979, Italy and the USSR entered into the Convention on enforcement as laid down by Law 218/1995 and the CPC apply judicial assistance in civil litigation (still in force between equally on the entire territory of the Italian Republic. Italy and Russia), under which a Russian court’s judgment is recognised in Italy, provided that: (i) it is final and no 2.13 What is the relevant limitation period to recognise longer appealable; and (ii) the Russian court has jurisdic- and enforce a foreign judgment? tion, in accordance with the criteria set out in Section 24 of the 1979 Convention. Since recognition of foreign judgments is considered a declar- According to the combined provisions of Sections 13 and atory process, a party’s entitlement to obtain recognition of a 25 of the 1979 Convention, an Italian court can refuse to foreign judgment is not subject to any limitation periods. recognise the foreign judgment if: (a) it can harm national As for enforcement, instead, the relevant statute of the limita- security or national sovereignty; (b) it infringes the tion period is governed by the lex causae applicable to the dispute, Italian fundamental legal principles; (c) the defendant was irrespective of the longer or shorter terms provided by the law unaware of the proceeding due to a late or void service to of enforcement (i.e. Italian law). If the lex causae is Italian law, him/her or to his/her representative; (d) the Italian court then the applicable limitation period would be 10 years running has already adopted a final ruling on the same subject from the issuing of the judgment (Section 2953 of the Italian matter; (e) the same suit is already pending before the court Civil Code). where the recognition is requested; and (f) the same suit falls within the exclusive jurisdiction of Italian courts. 32 Special Enforcement Regimes Applicable (iv) Italy – Brazil Convention of 17 October 1989 to Judgments from Certain Countries Judgments issued by a Brazilian court in civil matters must be recognised in Italy provided that: (a) they are not contrary to Italian public policy; (b) the judgment relates 3.1 With reference to each of the specific regimes to a matter which does not fall within the exclusive juris- set out in question 1.1, what requirements (in form diction of the Italian State or of a third State under Italian and substance) must the judgment satisfy in order to be recognised and enforceable under the respective law or under a treaty between Italy and a third State; (c) regime? the party has been duly summoned or has appeared before the court and has been duly represented; (d) the judgment is final and binding; and (e) the Italian court has already As Italy is a contracting party to several international and bilat- adopted a final ruling on the same subject matter and no eral conventions, the following section will analyse the most judgment has been delivered by the judicial authorities of frequently applied ones. the requested party on the same subject matter between the same parties.

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3.2 With reference to each of the specific regimes set (iv) Italy – Brazil Convention of 17 October 1989 out in question 1.1, does the regime specify a difference Under the Italy – Brazil Convention, the creditor has to between recognition and enforcement? If so, what is the apply to the competent court, by submitting: difference between the legal effect of recognition and (a) A certified copy of the full text of the decision. enforcement? (b) A certificate of the final judgment. (c) A certified copy of the summons or a document estab- Although this is not specifically mentioned in the multilateral or lishing that the defendant has been duly summoned in bilateral conventions to which Italy is a party, recognition and default of appearance. enforcement of foreign judgments are always different activities (d) A document establishing that the person legally inca- (see answer to question 2.5). pable was duly represented. (e) An official translation into the language of the requested party of the documents referred to at the 3.3 With reference to each of the specific regimes set previous letters. out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. 3.4 With reference to each of the specific regimes set Multilateral Convention out in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the (i) Lugano Convention special regime? When can such a challenge be made? Under the Lugano Convention, foreign judgments are automatically recognised without any special procedure. As for the enforcement procedure, at first, the creditor has Unless exceptions are provided for in individual bilateral agree- to apply to the competent court for the judgment to be ments, the ground on which recognition of a foreign judgment declared enforceable. Once certain formalities provided may be challenged are analogous to those provided for in the for in the Lugano Convention (Sections 53, 54 and 55) general regime of Law 218/95. In other words, recognition of have been completed, the court must declare the judgment a foreign judgment may be challenged if the foreign judgment enforceable. The decision on the application for enforcea- does not comply with the following requirements: bility of the judgment is served on the parties concerned. (i) The judgment was issued by an authority having jurisdiction. Following the service of the decision, the parties concerned (ii) The defendant was regularly summoned under the law of may as a rule challenge it within one month (two months the place where the proceedings took place and the essen- if the addressee is not domiciled in the country of enforce- tial rights of the defence were not violated; or its default ment). For example, the foreign debtor may oppose enforce- was regularly declared. ment by invoking one of the grounds provided for in Sections (iii) The judgment is final and binding in the country of origin. 34 and 35 of the Convention. (iv) The judgment is not contrary to another final judgment (ii) Hague Convention of 30 June 2005 issued by an Italian court. Under the Hague Convention, the party seeking recog- (v) There is no pending trial in an Italian court for the same nition or enforcement must submit before the competent subject matter and between the same parties that started court a request including: before the foreign trial. (a) A complete and certified copy of the judgment. (vi) The recognition does not produce effects that are contrary (b) The exclusive choice-of-court agreement, a certified to public policy. copy thereof or other evidence of its existence. (c) If the judgment was given in default of appearance, the 42 Enforcement original or a certified copy of a document. (d) Any document which establishes the enforceability or, 4.1 Once a foreign judgment is recognised and where appropriate, enforceability of the judgment in enforced, what are the general methods of enforcement the State of origin. available to a judgment creditor? (e) In the case provided for in Section 12 of the Convention, a certificate from a court in the State of The enforcement procedure is governed by Section 474 et ff. of origin attesting that the court settlement has, in whole the CPC and it is aimed at satisfying the creditor’s claim by the or in part, the same enforceable effectiveness as a deci- coercive realisation of a practical result equivalent to that which sion in the State of origin. would have resulted from the debtor’s voluntary performance. Overall, monetary judgment may be enforced through attach- Bilateral Convention ment of all debtor’s movable and immovable property and (iii) Italy – Socialist Republics (Russia) Convention of 25 credits. Indeed, the Italian legal system handles different types January 1979 of enforcement: Decisions on recognition shall be taken by the Tribunals of (i) Movable asset enforcement: concerns the movable assets the contracting party in whose territory the decision is to owned by the debtor, which are forcibly taken from the be recognised and enforced. owner by attachment in order to satisfy the creditor with The application for recognition shall be submitted to the their sale or assignment. foreign Tribunal of first instance, which shall forward (ii) Enforcement against third parties: concerns the debtor’s the application to the Tribunal responsible for the deci- receivables from a third party as well as the debtor’s assets sion. The application may also be submitted directly to the that are in the possession of a third party. Tribunal where the decision is to be enforced. (iii) Real estate enforcement: concerns the debtor’s real estate The form of the application and the information which or real estate rights. must be contained therein shall be determined by the law (iv) Specific form of enforcement: may relate to the delivery of of the State in which the judgment is to be enforced. a movable asset or the release of real estate, as well as the fulfilment of obligations to do or not to do.

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Further, under Italian law, certain assets may not be subject to The Court of Cassation stated that the recognition of that enforcement since they are functional to the exercise of certain judgment was precluded by the violation of legal principles, debtor’s rights recognised as fundamental. For instance, the from the twofold point of view of substantive public policy following cannot be subject to enforcement under any circum- (infringement of the principle of non-discrimination between stances (Article 514 of the CPC): men and women) and of procedural public policy (lack of defen- (i) Goods declared non-distrainable by special laws. sive equality and of effective adversarial proceedings given the (ii) Sacred goods or the ones necessary for worship activities. unilateral nature of the repudiation). (iii) Wedding rings, clothes, beds, tables and chairs used for The Court of Cassation ruled on the transcription in Italy of having meals, wardrobes, chests of drawers and so on. the termination of marriage by repudiation, establishing that (iv) Books, tools and goods that are essential for the job, the this institute, although validly pronounced by a foreign religious business, arts and crafts of the debtor. authority, cannot be accepted in the Italian legal system. (v) Arms and other objects that the debtor holds for fulfilling a public service. 5.2 Are there any particular tips you would give, or (vi) Merit decorations, letters, registers and family writings, critical issues that you would flag, to clients seeking manuscripts, except if they are part of a collection. to recognise and enforce a foreign judgment in your Please note that other assets may not be subject to enforce- jurisdiction? ment in specific circumstances (see Sections 515 and 516 of the CPC). Generally speaking, before initiating the recognition and enforcement procedure it would be appropriate to make sure 52 Other Matters that: (i) all the documents which will be lodged with the court are translated; and (ii) the at-issue judgment satisfies the require- 5.1 Have there been any noteworthy recent (in the ments (in form and substance) to be recognised and enforced last 12 months) legal developments in your jurisdiction (particular attention should be paid with reference to recogni- relevant to the recognition and enforcement of foreign tion of foreign judgments concerning the matter of family rela- judgments? Please provide a brief description. tionships: there are several court precedents which contrast with the public policy principles; for instance, in the field of the use In May 2019, the Court of Cassation ruled against the recogni- of some medically assisted procreation techniques). tion of a foreign judgment that established the repudiation of a woman, an Italian and Jordanian citizen, by her husband, who was also Italian and Jordanian.

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Micael Montinari focuses on litigation. His clients include retail chains, fashion houses and brands and media/digital players. He heads the dispute resolution team (ranked by The Legal 500 since 2006). His experience includes a broad range of matters, including commercial and business and intellectual property disputes as well as arbitration, often with a significant cross-border element.

Portolano Cavallo Tel: +39 06 696 661 Via Rasella, 155 Email: [email protected] 00187 Rome URL: portolano.it/en Italy

Martina Lucenti joined Portolano Cavallo in 2017. She focuses on domestic and international litigation and arbitration. She assists Italian and foreign clients in commercial and corporate disputes, post-M&A litigation, directors’ and officers’ liability suits, liability of financial and insurance intermediaries and insolvency litigation. She has also assisted companies in civil actions for vicarious liability brought before criminal courts.

Portolano Cavallo Tel: +39 02 722 341 Piazza Borromeo, 12 Email: [email protected] 20123 Milan URL: portolano.it/en Italy

Filippo Frigerio joined Portolano Cavallo in 2015. He is an attorney-at-law in Milan and Academic fellow at the Department of Law of Bocconi University, where he earned his law degree in 2015. Filippo assists both Italian and foreign clients in litigation and arbitration disputes on civil and commercial matters.

Portolano Cavallo Tel: +39 02 722 341 Piazza Borromeo, 12 Email: [email protected] 20123 Milan URL: portolano.it/en Italy

Claudia Rivieccio began her collaboration with Portolano Cavallo in February 2019. She focuses primarily on litigation, providing assistance in commercial disputes for both Italian and foreign clients. She graduated cum laude with an “honour mention” from Federico II University of Naples in December 2018, with a dissertation on commercial law entitled “The Sharing Economy and Competition Law”.

Portolano Cavallo Tel: +39 02 722 341 Piazza Borromeo, 12 Email: [email protected] 20123 Milan URL: portolano.it/en Italy

Portolano Cavallo was founded in 2001 by partners Manuela Cavallo and Francesco Portolano. Portolano Cavallo provides legal advice to companies operating in complex and evolving sectors: it is a leader in the Digital, Media and Technology sectors, in addition to being recognised in the Life Sciences and Fashion/ Luxury fields. The firm’s practice areas range from litigation to M&A and venture capital, from emerging companies to the exploitation and protection of all forms of intellectual property, from employment to data protection, privacy and cyber-security issues, from technology transactions to antitrust and regulatory issues. In all these areas, Portolano Cavallo is recognised by multiple legal Italian and international rankings and awards. portolano.it/en

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 82 Chapter 15 Japan Japan

Yuko Kanamaru

Mori Hamada & Matsumoto Yoshinori Tatsuno

12 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 such special Requirements for recognition regimes apply. Article 118 of the CCP sets out the following requirements for a final and binding foreign judgment to be effective (i.e., to be recognised) in Japan: Applicable Law/ Relevant Corresponding “(i) the jurisdiction of the foreign court is recognised under laws, regula- Statutory Regime Jurisdiction(s) Section Below tions, conventions or treaties; None. N/A. N/A. (ii) the defeated defendant has received a service (excluding a service by publication or any other service similar thereto) of summons or order 22 General Regime necessary for the commencement of the suit, or has appeared without receiving such service; (iii) the contents of the judgment and the court proceedings are not contrary 2.1 Absent any applicable special regime, what is the to public policy in Japan; and legal framework under which a foreign judgment would (iv) a mutual guarantee exists.” be recognised and enforced in your jurisdiction? The requirement under Article 118(i) is called “indirect jurisdiction”. This is “indirect” in the sense that the Japanese court will The Code of Civil Procedure (Act No. 109 of 1998, the “CCP”) examine the foreign court’s jurisdiction over the case for which the and the Civil Execution Act (Act No. 4 of 1979, the “CEA”) are foreign judgment at issue was rendered and is distinct from “direct the primary legal sources which provide for the requirements and jurisdiction”, where the Japanese court will determine whether the the procedures for recognising and enforcing a foreign judgment Japanese court itself has jurisdiction over the case. In Article 118(i) in Japan. Judicial precedents function as a secondary legal source of the CCP, it is not clear whether the phrase “laws [and] regula- which construes and complements the legislative sources. tions” means laws and regulations of Japan or those of the country Japan is neither a party nor a signatory to any bilateral or where the foreign judgment was rendered. Prior to the amend- multilateral treaties for the reciprocal recognition and enforcement of the CCP in 2012, which added the provisions regarding ment of foreign judgments, including the Hague Convention on the Japanese court’s international jurisdiction (i.e., Articles 3-2 to the Recognition and Enforcement of Foreign Judgments in Civil 3-12 of the CCP), Sup. Ct. 1998 ruled that in determining the exist- and Commercial Matters. ence of indirect jurisdiction, it is appropriate to refer to the rule of reason, taking into account the principles of fairness among the 2.2 What constitutes a ‘judgment’ capable of parties and the pursuit of appropriate and swift judgment. More recognition and enforcement in your jurisdiction? specifically, Sup. Ct. 1998 ruled that indirect jurisdiction should be determined from the standpoint of whether it is appropriate to recognise the foreign judgment in Japan, considering the specific Pursuant to Article 118 of the CCP and Article 24, section 5 of circumstances of the case and referring to the relevant provisions the CEA, a foreign judgment must be “final and binding” for of the CCP. Although there is still no established conclusion on it to be recognised and enforced in Japan. Therefore, interim this issue after the amendment of the CCP in 2012, it is clear that, reliefs such as provisional attachments or provisional dispo- considering the ruling of Sup. Ct. 1998, a Japanese court will at sitions which are rendered by a foreign court are not enforce- least refer to and consider Articles 3-2 to 3-12 of the CCP when able per se. Specific performance and permanent injunctions are determining the indirect jurisdiction of a foreign court. enforceable as long as they are final and binding and the other The “service” required under Article 118(ii) of the CCP need applicable requirements are satisfied. not be the service under the Japanese civil procedure, but the A foreign “judgment” under Article 24 of the CEA refers to service must be done such that: (a) the defendant can actually any final judgment rendered by a foreign court regarding the be aware of the commencement of the legal proceedings against private relationships of the parties under a guarantee of proce- him/her; (b) he/she is not prevented from the appropriate exer- dural due process, regardless of the name, procedure or format cise of the right to defence; and (c) the service complies with adopted by the foreign court. See Supreme Court, 28 April 1998, applicable conventions or treaties. See Sup. Ct. 1998. In addition, Heisei 6 (O) No. 1838 (“Sup. Ct. 1998”). the requirement of service under Article 118(ii) of the CCP can also be satisfied if the unsuccessful defendant has “appeared”

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in court. The term “appearance” means that the defendant was claim or the seizable property of the judgment obligor is located given the opportunity to defend and actually took measures to in Japan, the Japanese district court which has jurisdiction over defend himself/herself in court, including the submission of a the location of the property has the jurisdiction over the action jurisdictional challenge. See Sup. Ct. 1998. seeking the enforcement of the foreign judgment. For example, As for the “public policy” requirement under Article 118(iii) of when the claim of a foreign judgment is regarding a real prop- the CCP, the foreign judgment must not be against public policy erty in Japan, the district court which has jurisdiction over the in Japan. It is generally considered that both the contents of place of that real property shall have the jurisdiction over the the foreign judgment itself and the underlying facts upon which action seeking the enforcement of the foreign judgment. Also, if the judgment is based are to be examined to determine whether a foreign judgment obligor has a seizable real property or a bank they are contrary to public policy in Japan. Typical examples are account in Japan, the district court which has jurisdiction over the judgments ordering the payment of gambling debts and those location of the real property or the bank office has the jurisdiction ordering the payment of punitive damages, although the conclu- over the action seeking the enforcement of the foreign judgment. sions are dependent on the individual facts of each case. The “mutual guarantee” requirement under Article 118(iv) means 2.5 Is there a difference between recognition and reciprocity, which requires that, in the foreign country where the enforcement of judgments? If so, what are the legal foreign judgment was rendered, the same type of judgment rendered effects of recognition and enforcement respectively? by a Japanese court would be effective under conditions which are not substantially different from those in Japan, i.e., Article 118 of the The legal effects of the recognition of a foreign judgment are CCP. See Supreme Court, 7 June 1983, Showa 57 (O) No. 826. considered to be the expansion of the legal effects of the judgment made by the foreign court (e.g., res judicata) to Japan. In Japan, a Requirements for enforcement foreign judgment is recognised without any specific procedure as To enforce a foreign judgment, it is necessary to first obtain long as it satisfies the requirements of Article 118 of the CCP. an execution judgment from a Japanese court under Article 24 On the other hand, the legal effects of the enforcement of a of the CEA and then to file a petition for compulsory execu- foreign judgment are considered to be the authorisation to execute tion based on the execution judgment. However, despite the the foreign judgment in Japan. To enforce a foreign judgment necessity to comply with those specific procedures, the require- in Japan, it is necessary to obtain an execution judgment from a ments for enforcement actually overlap with those for recogni- Japanese court and then file a petition for compulsory execution tion. Article 24, section 4 of the CEA clarifies that an execu- based on that execution judgment, although the requirements for tion judgment shall be made without investigating whether or enforcement and for recognition actually overlap. not the content of the foreign judgment is appropriate, and then Article 24, section 5 of the CEA provides that an action seeking an execution judgment for a foreign judgment shall be dismissed 2.6 Briefly explain the procedure for recognising and when: (a) it is not proved that the foreign judgment has become enforcing a foreign judgment in your jurisdiction. final and binding; or (b) the foreign judgment does not satisfy the requirements of Article 118 of the CCP (i.e., the require- As explained in question 2.5 above, a foreign judgment is recog- ments for recognition). nised without any specific procedure in Japan, as long as it satisfies the requirements of Article 118 of the CCP. 2.4 What (if any) connection to the jurisdiction is For enforcement, the judgment creditor who wants the execu- required for your courts to accept jurisdiction for tion of a foreign judgment in Japan must first file a lawsuit, recognition and enforcement of a foreign judgment? before a competent district court of Japan, against the judgment obligor to seek an execution judgment. See supra, question 2.4 Article 24, section 1 of the CEA provides that an action seeking regarding jurisdiction and question 2.3 for the requirements for an execution judgment for a foreign judgment shall be under the an execution judgment. If an execution judgment for a foreign jurisdiction of the Japanese district court which has jurisdiction judgment is issued and becomes final and binding, the judg- over the location of the “general venue” of the foreign judgment ment creditor may file a motion for compulsory execution with obligor; if there is no such general venue of the foreign judg- the competent execution court, where the compulsory execu- ment obligor in Japan, then it shall be under the jurisdiction of tion shall be carried out based on the foreign judgment and the the Japanese district court which has jurisdiction over the loca- execution judgment therefor. See Article 22(vi) of the CEA. tion of the subject matter of the claim or the seizable property of the judgment obligor. 2.7 On what grounds can recognition/enforcement of a If the foreign judgment obligor is a natural person, the “general judgment be challenged? When can such a challenge be venue” of the judgment obligor is determined: (a) by the person’s made? domicile; (b) by the person’s residence (i.e., non-permanent place of living) if the person is not domiciled in Japan or his/her domi- The recognition/enforcement of a foreign judgment can be cile is unknown; or (c) by the person’s last domicile in Japan if the challenged if it does not satisfy any of the requirements explained person does not have a residence in Japan or his/her residence is in question 2.3. unknown. See Article 4, section 2 of the CCP. As set out in Article 24, section 4 of the CEA, an execution If the foreign judgment obligor is a corporation or any other judgment for a foreign judgment will be made without inves- association or foundation, the “general venue” of the judgment tigating whether the content of the foreign judgment is appro- obligor is determined: (a) by the location of its principal office or priate. Therefore, the judgment obligor is, as a general rule, not business office; or (b) by the domicile of its representative or any entitled to raise a substantive issue to challenge recognition or other principal person in charge of its business if it has no business enforcement. However, an action seeking an execution judgment office or other offices in Japan. See Article 4, section 4 of the CCP. for a foreign judgment will be dismissed if it does not satisfy the As noted above, even when there is no general venue of the requirements of Article 118 of the CCP. See supra. This means foreign judgment obligor in Japan, if the subject matter of the that a judgment obligor can raise a substantive issue by alleging

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that the content of that foreign judgment is contrary to public On the other hand, a foreign judgment may be recognised and policy in Japan. See Article 118(iii) of the CCP. enforced even if there is a prior Japanese judgment on the same Article 118(iii) is a very general and vague requirement which or a similar issue but between different parties. In Japan, court may change with the times. So far, judgments ordering the judgments do not have a binding effect, while they can have payment of gambling debts or punitive damages are considered a persuasive authority. Thus, a local judgment which conflicts to be contrary to public policy in Japan, but this view may with a foreign judgment, involving different parties, even on change in the future. the same or a similar issue, does not have a definitive effect in the consideration of the recognition of the foreign judgment. Having said that, it is also possible for a court to dismiss an 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign action for the enforcement of a foreign judgment on the ground judgments relating to specific subject matters? that it is contrary to public policy in Japan (Article 118(iii) of the CCP), if the court concludes that the recognition of that foreign judgment would bring disorder to the Japanese legal system. Japan does not have a framework relating to specific subject matters. 2.11 What is your court’s approach to recognition and enforcement of a foreign judgment that purports to 2.9 What is your court’s approach to recognition and apply the law of your country? 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 Even if a foreign judgment purports to apply Japanese law, it between the parties? will not make any difference to the Japanese court’s approach to recognition and enforcement, and the rules under Article 24 For scenario (a), where there is a conflicting Japanese judgment of the CEA and Article 118 of the CCP, as explained above, will between the exact same parties relating to the same issue, the apply. However, an action seeking the enforcement of a foreign foreign judgment will not be recognised on the ground that it is judgment will not be granted if the application of Japanese law is contrary to public policy in Japan. See Article 118(iii) of the CCP. definitely incorrect such that it may be seen as contrary to public There is no Supreme Court judgment but there is a 1977 Osaka policy in Japan. District Court judgment on the matter. See Osaka District Court, 22 December 1977, Showa 50 (WA) No. 4257 and Showa 2.12 Are there any differences in the rules and 51 (WA) No. 5135 (“Osaka Ct. 1977”). In this case, the Osaka procedure of recognition and enforcement between District Court did not grant the petition for the enforcement of the various states/regions/provinces in your country? a foreign judgment, stating that: Please explain. “[I]t is to disrupt the order of legal system as a whole if the existence of two judgments which conflict with each other in the same legal system is allowed. There are none. Therefore, regardless of which is the first to be brought, to be rendered, or to become final and binding, it is against the order of the Japanese 2.13 What is the relevant limitation period to recognise court procedural laws and is ‘contrary to public policy in Japan’ under and enforce a foreign judgment? Article 200(iii) of the Civil Procedural Act [note: now, Article 118(iii) of the CCP] to recognise a foreign judgment which conflicts with a Japanese judgment relating to the same issue between the same parties when that An action for the enforcement of a foreign judgment will be Japanese final and binding judgment has already been rendered.” time-barred after 10 years from the date when the foreign It is worth noting that, although the Osaka Ct. 1977 judgment is rendered. See Article 169-1 of the Japanese Civil determined that a foreign judgment which conflicts with a Code (Act No. 89 of 1887, as amended). Japanese judgment will not be recognised and enforced “regardless of which is first to be brought, to be rendered, or to become final and binding”, 32 Special Enforcement Regimes Applicable there is continuing discussion as to whether this ruling applies to Judgments from Certain Countries to cases where the conflicting Japanese judgment is rendered after the foreign judgment has become final and binding. 3.1 With reference to each of the specific regimes In scenario (b), where there are local proceedings pending set out in question 1.1, what requirements (in form and between the parties, the foreign judgment can be recognised and substance) must the judgment satisfy in order to be enforced. In that case, there is no judgment yet in the Japanese recognised and enforceable under the respective regime? proceedings and, therefore, there is no basis to conclude that the foreign judgment conflicts with the results of the Japanese This is not applicable in Japan. proceedings, which is a situation totally different from Osaka Ct. 1997. 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference 2.10 What is your court’s approach to recognition and between recognition and enforcement? If so, what is the enforcement of a foreign judgment when there is a difference between the legal effect of recognition and conflicting local law or prior judgment on the same or a enforcement? similar issue, but between different parties? This is not applicable in Japan. A foreign judgment which conflicts with Japanese law will likely not be recognised on the ground that it is contrary to public policy in Japan. See Article 118(iii) of the CCP.

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3.3 With reference to each of the specific regimes set 52 Other Matters out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction This is not applicable in Japan. relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ In the last 12 months, there have not been any major develop- enforcement of a judgment be challenged under the ments in Japan relevant to the recognition and enforcement of special regime? When can such a challenge be made? foreign judgments.

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 42 Enforcement 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 It is worth noting that a 1990 Tokyo District Court judgment available to a judgment creditor? ruled that a translation of the service of process must be attached, and that the lack of translation is a failure to meet the “service” See question 2.6. When a judgment creditor has obtained an execu- requirement under Article 118(ii) of the CCP. See Tokyo District tion judgment that has become final and binding, he/she is enti- Court, 26 March 1990, Showa 62 (WA) No. 12503. Although it is tled to file a motion for compulsory execution with the competent not a Supreme Court decision and is relatively old, it is advisable execution court, where the compulsory execution shall be carried to follow the decision and attach a translation into a language out based on the foreign judgment and the execution judgment. known to the defendant if there is the possibility that there may be a need to enforce the judgment in Japan.

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Yuko Kanamaru is a partner at Mori Hamada & Matsumoto and is admitted in Japan and New York. Ms. Kanamaru deals with a wide range of domestic and international disputes, especially in commercial, transactional and labour-related matters, including litigation and labour tribunal proceedings. Her expertise includes advising international clients in a wide range of corporate matters involving the Companies Act and the Financial Instruments and Exchange Act, data protection, and labour and employment. She is fluent in both Japanese and English.

Mori Hamada & Matsumoto Tel: +81 3 6266 8542 Marunouchi Park Building Email: [email protected] 2-6-1 Marunouchi, Chiyoda-ku URL: www.mhmjapan.com Tokyo 100-8222 Japan

Yoshinori Tatsuno is a partner at Mori Hamada & Matsumoto. He is admitted in Japan and California and has extensive experience representing clients in international disputes and transactions, including international arbitration cases at the ICC and the SIAC, disputes involving litigations in multiple jurisdictions, and pre-litigation negotiations and disputes in cross-border transactions. He earned his LL.M. from Harvard Law School in 2015 and has experience working with Weil, Gotshal & Manges LLP, New York office, in 2015–2016 and at MHM’s Singapore office in 2016–2017 for multijurisdictional litigations and international arbitrations.

Mori Hamada & Matsumoto Tel: +81 3 6266 8785 Marunouchi Park Building Email: [email protected] 2-6-1 Marunouchi, Chiyoda-ku URL: www.mhmjapan.com Tokyo 100-8222 Japan

Mori Hamada & Matsumoto (MHM) is one of the largest, full-service, Tokyo- Thailand, Chandler & Thong-ek Law Offices Limited, integrated its operations headquartered international law firms. A significant proportion of the firm’s with our Bangkok office on 1 January 2017 under the name Chandler MHM work is international in nature, including representing clients in cross-border Limited. MHM also has domestic offices in Fukuoka, Nagoya and Osaka. litigation and other dispute resolution proceedings. www.mhmjapan.com MHM has over 500 lawyers and other professionals and over 500 support staff (including patent attorneys, licensed tax accountants, legal assistants and translators). MHM is highly recognised by both clients and legal professionals in the following practice areas: mergers and acquisitions; joint ventures; finance; international capital markets (including JREITS); asset management; loans and securitisations; private equity; infrastructure/energy; PFI/PPP; insolvency/restructuring; intellectual property; antitrust; and competition. Other core practice areas include tax and labour law. MHM has a strong presence in Asia, with offices in Bangkok, Beijing, Ho Chi Minh City, Shanghai, Singapore and Yangon. The leading law firm in

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Liechtenstein Liechtenstein

Thomas Nigg

GASSER PARTNER Attorneys at Law Domenik Vogt

12 Country Finder Andorra, Austria, Belgium, 1.1 Please set out the various regimes applicable to Bulgaria, recognising and enforcing judgments in your jurisdiction Cyprus, the and the names of the countries to which such special Czech Republic, regimes apply. Denmark, Estonia, Finland, France, Germany, Applicable Law/ Relevant Corresponding Greece, Hungary, Statutory Regime Jurisdiction(s) Section Below Iceland, Ireland, Treaty between The European Italy, Latvia, the Principality of Convention of 20 Liechtenstein, Liechtenstein and the May 1980 concerning Lithuania, Swiss Confederation the recognition and Luxembourg, Liechtenstein Section 3. on the recognition Section 3. enforcement of deci- Malta, Moldova, and Switzerland. and enforcement of sions relating to Montenegro, the judgments and arbi- custody rights for Netherlands, tral awards dated 25 children. North April 1968. Macedonia, Norway, Poland, Treaty between Portugal, the Principality of Romania, Liechtenstein and the Serbia, Slovakia, Republic of Austria Spain, Sweden, on the recognition Liechtenstein Section 3. Switzerland, and enforcement of and Austria. Turkey, Ukraine judgments, arbitral and the United awards, settlements Kingdom. and public deeds dated 5 July 1973. New York Convention on the All countries Austria, Recognition and signatory to the Section 3. Belgium, China Enforcement of Convention. (Macao), the Foreign Arbitral Czech Republic, The Hague Awards 1958. Denmark, Convention of Finland, France, 15 April 1958 Germany, concerning the 22 General Regime Hungary, Italy, recognition and Liechtenstein, Section 3. enforcement of deci- 2.1 Absent any applicable special regime, what is the the Netherlands, sions relating to legal framework under which a foreign judgment would Norway, maintenance obli- be recognised and enforced in your jurisdiction? Portugal, gations towards Slovakia, Spain, children. The enforcement of judgments in civil law issues in Liechtenstein Suriname, is exclusively based on the Liechtenstein Enforcement Act of 24 Sweden, November 1971 (Exekutionsordnung, “EO”). According to Art. Switzerland and 52 EO, a formal recognition and enforcement of a foreign judg- Turkey. ment in Liechtenstein is contingent upon reciprocity and thus generally not possible.

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However, decisions of foreign courts may be used as a for the performance of an obligation, a lawsuit against that party basis for summary proceedings in accordance with the Civil may be brought at that place (§ 43 JN). Liechtenstein courts Procedure Code of 10 December 1912 (Zivilprozessordnung, further have jurisdiction over actions asserting a right in rem to “ZPO”). If a summary court order is disputed, a specific proce- an immovable property if the immovable property is situated in dure is instigated, the so-called “Reinstitution Procedure” Liechtenstein (§ 38 JN). Moreover, a venue may be established (Rechtsöffnungsverfahren), which is regulated by the Act on the in Liechtenstein by way of a jurisdiction clause in a contract Protection of Rights of 9 February 1923 (Rechtssicherungsordnung, executed by both parties to the dispute (§ 53 JN). “RSO”). In most cases, this leads to an entirely new judging of For a long time, Liechtenstein courts have been applying the the merits of the case in Liechtenstein. rule of indication. According to this rule, Liechtenstein courts only have jurisdiction if a venue is established in Liechtenstein and if there is a close connection between Liechtenstein and the 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? case brought before the court. However, Liechtenstein courts have departed from this rule and thus the necessity for a close connection between Liechtenstein and the case brought before As explained above, the scope of application of Art. 52 EO is court has been eliminated. rather limited and therefore the legal requirements for a judgment according to the RSO are dealt with in the following. To initiate the Reinstitution Procedure, a foreign public deed is 2.5 Is there a difference between recognition and required. In particular, a foreign judgment or a private acknowl- enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? edgment of debt qualify as such. The foreign public deed must have been issued in accordance with the law of the country of origin. Furthermore, the creditor’s claim must be of a civil law Liechtenstein law distinguishes between recognition and nature and aimed at the payment or surrender of money or an enforcement of judgments. Recognition extends the effects of a article of property. Lastly, the foreign judgment must be final foreign judgment to the recognising country, whereas enforce- and legally binding and must not violate the ordre public. ment denotes the execution of a judgment. Recognition and enforcement are closely linked, as a foreign judgment may only be enforced if it has been recognised. 2.3 What requirements (in form and substance) must Depending on its nature and content, a foreign judgment only a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? requires recognition, or it may require recognition and enforcement. For instance, a declaratory judgment can only be recognised, whereas a judgment granting performance can be recog- According to Art. 52 EO, a foreign judgment may only be nised and enforced. enforced in Liechtenstein if and to the extent that this is stipulated in a treaty or if reciprocity is guaranteed by treaty or declaration of reciprocity. Therefore, in the absence of any applicable 2.6 Briefly explain the procedure for recognising and special regime, foreign judgments are principally not enforce- enforcing a foreign judgment in your jurisdiction. able in Liechtenstein. Although a formal recognition and thus an enforcement of As already mentioned, foreign judgments may be rendered a foreign judgment is therefore not possible in Liechtenstein, a enforceable in Liechtenstein by way of a special procedure which successful plaintiff, who is a creditor on the basis of a foreign judg- is divided into summary proceedings and the (normally) ensuing ment, may achieve his goal by way of the Reinstitution Procedure. Reinstitution Procedure. As explained above, a foreign public deed is required to Based on a foreign judgment, the creditor may apply for a initiate the Reinstitution Procedure. Apart from the substantive payment order (if the foreign judgment states the debtor’s obliga- requirements mentioned in question 2.2, the original foreign tion to pay a certain amount of money or transfer fungible assets judgment or a certified copy thereof has to be presented to court. to the creditor) or a court order for a specific performance by the Furthermore, if the foreign judgment is in a language other than debtor (if the foreign judgment is of a declaratory nature or states German, a translation of the judgment has to be produced. the debtor’s obligation to perform or not to perform certain acts). Such summary court orders have the quality of a Liechtenstein judgment and can therefore be enforced in Liechtenstein. As 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for a result, although a formal recognition of a foreign judgment is recognition and enforcement of a foreign judgment? principally not possible in Liechtenstein, it can be converted into a Liechtenstein court order which can be enforced in Liechtenstein. However, as summary court orders are issued without the The jurisdiction of Liechtenstein courts is stipulated in opposing party being heard, the debtor can raise an objection and the Liechtenstein Judicature Act dated 10 December 1912 thus nullify the court order by simple notice to the court. ( Jurisdiktionsnorm, “JN”). The local jurisdiction of Liechtenstein If the summary court order is nullified upon an objection by the courts also establishes their international jurisdiction. Pursuant debtor, the creditor may, in turn, demand that the court set aside to § 30 JN, the Princely Court of Justice shall have jurisdiction the debtor’s objection and reinstitute the creditor’s summary court if the defendant is domiciled in Liechtenstein (“general forum”). order. Such an application for reinstitution (Rechtsöffnungsgesuch) In addition, there are several forums which constitute can be regarded as a regular claim and leads to a court procedure, special jurisdictions in favour of a Liechtenstein court. For which is, however, simplified and structured as a very speedy example, a venue may be established in Liechtenstein if the summary procedure. The court must schedule a hearing, at the foreign defendant has assets in Liechtenstein (§ 50 para. 1 JN). latest, five days after receipt of the application for reinstitution. Liechtenstein courts may have jurisdiction over a foreign-based The Reinstitution Procedure is purely based on enforcement law. company if either its permanent representation or its entities in Thus, the court does not evaluate and decide whether the claim as charge of management are residents of Liechtenstein (§ 50 para. such does exist. Instead, the court decides whether it is correct and 3 JN). If a party has chosen a special location in Liechtenstein

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lawful to enforce this claim in Liechtenstein. In the course of the of reciprocity stipulated in Art. 52 EO is dispensed with. The Reinstitution Procedure, the debtor is also heard and thus has a first recognition of personal and family law matters is stipulated in chance to oppose the claim raised by the creditor based on formal Art. 89 PGR. According to this provision, decisions or other arguments (e.g. lack of agreements on enforcement and acknowl- deeds on changes regarding the civil status, citizenship, name or edgment, violation of the debtor’s right to be heard in the foreign marital status of a person whose birth, marriage or civil union procedure, lack of the foreign court’s competence to hear the case) was certified in a domestic register shall be registered accord- and substantive arguments (e.g. ordre public). The debtor may furnish ingly in the civil register upon approval of the government or, in evidence by providing deeds or through the testimony of witnesses case of appeal, the Administrative Court. present at the hearing. As the Reinstitution Procedure is meant to However, an approval may only be granted if the foreign be a speedy, simplified procedure, no other evidence is admissible. decision or deed has been issued by the competent authority in Pursuant to settled case law of the Liechtenstein Constitutional accordance with the law of the country of origin. Court, the debtor may raise all objections to the application for rein- If the birth, marriage or civil union was registered in a stitution and to the creditor’s claim in the course of the reinstitution foreign civil register, changes regarding the civil status, citizen- procedure, provided that these objections can be proven by means ship, name or marital status as well as the corrections of birth, of deeds or witnesses present at the hearing. The debtor is therefore death, marriage or civil union registrations may be registered not restricted in this respect and can dispute the claim of the cred- in the domestic civil register on instruction of the government. itor on the merits and its amount as well as on the basis of proce- A same-sex marriage contracted abroad is recognised as a civil dural obstacles. Therefore, there is effectively no limitation as to union in Liechtenstein. the range of possible objections, which is why it can be said that the In the case of Liechtenstein citizens, the registration must be instigation of the reinstitution procedure leads to a new judging of made if the change is to be regarded as legally effective. the merits of the case in Liechtenstein (révision au fond). On the basis of Art. 89 PGR, the registry office, which has If reinstitution is not granted, the creditor is informed by the been declared as competent by the government, has regularly court that if he wishes to pursue his claim further, he will have verified, recognised and registered foreign decisions to the to file a claim in Liechtenstein. The dismissal of the creditor’s extent that they were relevant for the Liechtenstein register. application for reinstitution only has a formally binding effect, but not a materially binding effect. Therefore, the creditor may 2.9 What is your court’s approach to recognition and initiate regular judicial proceedings without the debtor being enforcement of a foreign judgment when there is: (a) a able to object for reasons of res judicata. conflicting local judgment between the parties relating If reinstitution is granted, the according decision of the court to the same issue; or (b) local proceedings pending serves as a legal title, based on which the creditor can demand between the parties? enforcement of his claim. The debtor may not formally appeal against this decision. However, the debtor may file the so-called A formal recognition and enforcement of foreign decisions is Disallowance Claim (“Aberkennungsklage”). principally not possible in Liechtenstein. Thus, the alternative procedures, such as summary proceedings and the Reinstitution 2.7 On what grounds can recognition/enforcement of a Procedure, are considered in the following. judgment be challenged? When can such a challenge be The application for a summary court order is to be dismissed made? by the court if there is a conflicting local judgment between the parties relating to the same issue or if there are local proceed- By means of the Disallowance Claim, the debtor may object to ings pending between the parties. However, as summary court the reinstitution. However, the Disallowance Claim is not a legal orders are issued without the opposing party being heard, any remedy in the sense of an appeal, but a regular claim aimed at a conflicting local judgments or pending proceedings may go unno- negative declaratory judgment. If it is granted, the court confirms ticed. Nevertheless, the debtor has the opportunity to object and that the claim underlying the Reinstitution Procedure does not thus to eliminate the court order by simple notice to the court. exist or is not enforceable and that the reinstitution is set aside. In the Reinstitution Procedure, the debtor can oppose the claim The Disallowance Claim is beneficial for foreign creditors as it raised by the creditor based on formal arguments. Therefore, he reverses the roles of the parties (the debtor must file the claim) may also invoke the defences of res judicata or lis pendens. If there and thus a foreign creditor does not have to provide a security is a conflicting local judgment between the parties relating to the deposit for procedural costs. However, although the debtor files same issue or local proceedings pending between the parties, the the claim, the burden of proof is still placed upon the creditor. court will dismiss the demand for reinstitution. In the course of the Disallowance Procedure, the debtor has the chance to lay out and prove his arguments in a regular, full 2.10 What is your court’s approach to recognition and and unrestricted court procedure and specifically object to the enforcement of a foreign judgment when there is a foundation and existence of the claim raised by the creditor for conflicting local law or prior judgment on the same or a the first time. The Disallowance Procedure therefore no longer similar issue, but between different parties? deals with the question of whether it was correct for the court to confirm enforceability of the creditor’s claim and thus to grant As already explained above, the conversion of a foreign judg- reinstitution, but it is, rather, a full procedure on the merits of ment into a Liechtenstein judgment regularly leads to an entirely the claim raised by the creditor – notwithstanding the fact that a new judging of the merits of the case in Liechtenstein. As a foreign judgment on such a claim may already exist. result, the Liechtenstein courts will review whether the judgment was rendered in accordance with the applicable law. In 2.8 What, if any, is the relevant legal framework particular, the Liechtenstein courts may verify whether the judg- applicable to recognising and enforcing foreign ment is in accordance with the Liechtenstein ordre public. judgments relating to specific subject matters? A conflicting prior judgment on the same or a similar issue between different parties will be considered by the court and In the area of personal and family law, the strict requirement arguably hinder the conversion of the foreign judgment.

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2.11 What is your court’s approach to recognition and The Treaty between Liechtenstein and Switzerland regulates enforcement of a foreign judgment that purports to judgments and arbitral awards in civil matters. Art. 1 of the Treaty apply the law of your country? between Liechtenstein and Switzerland stipulates essentially the same requirements as Art. 1 of the Treaty between Liechtenstein As stated above, the conversion of a foreign judgment into a and Austria. However, the Treaty only excludes the recognition Liechtenstein judgment normally involves a révision au fond. and enforcement of decisions in insolvency proceedings, inter- Therefore, a Liechtenstein court will review whether the foreign locutory injunctions, administrative penalties, and decisions on court has correctly applied the Liechtenstein substantive law. civil law claims rendered in criminal proceedings from its scope. 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 in Liechtenstein, an arbitral award must have been rendered in procedure of recognition and enforcement between a contracting state as Liechtenstein reserved the application of the various states/regions/provinces in your country? the Convention only to recognition and enforcement of awards Please explain. made in the territory of other contracting states. If an arbitral award is not made in the official language of Liechtenstein The above-mentioned laws (EO, ZPO, RSO, PGR) apply (German), the party applying for recognition and enforcement uniformly throughout Liechtenstein. There are no differences of the award shall produce a translation of these documents in the rules and procedure of recognition and enforcement into German. The translation shall be certified by an official or between various regions. 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 between recognition and enforcement? If so, what is the of procedural law. As a result, the limitation period varies difference between the legal effect of recognition and enforcement? depending on the claim in question and the applicable law to such a claim. 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 Under Liechtenstein law, a judgment may be enforced within 30 York Convention, distinguish between recognition and enforce- years of its entry into legal force, irrespective of which limitation ment. Recognition extends the legal effects of a foreign judg- period has been applicable to the underlying claim. The limitation ment to the recognising country, whereas enforcement denotes period is interrupted as soon as a motion for enforcement is filed the execution of a judgment. with the competent court, provided that it is granted eventually. 3.3 With reference to each of the specific regimes set 32 Special Enforcement Regimes Applicable out in question 1.1, briefly explain the procedure for to Judgments from Certain Countries recognising and enforcing a foreign judgment.

3.1 With reference to each of the specific regimes According to Art. 5 of the Treaty with Austria, the party seeking set out in question 1.1, what requirements (in form recognition of a judgment shall supply a counterpart of the judg- and substance) must the judgment satisfy in order to ment affixed with an official signature and the official seal or be recognised and enforceable under the respective stamp, a judicial confirmation of the judgment’s entry into legal regime? force and – if necessary – its enforceability, in case of a judgment by default, a counterpart of the summons and a judicial confir- Among the multilateral and bilateral treaties and conventions mation of the kind and time of its delivery to the absent party, listed in question 1.1, the most important ones are the Treaty and, if the facts of the case are not recognisable by means of the between Liechtenstein and Switzerland, the Treaty between judgment, a counterpart of the claim or other appropriate deeds. Liechtenstein and Austria and the New York Convention, all of Art. 5 of the Treaty with Switzerland lays down similar require- which will be dealt with in the following. ments. However, in addition to the above-mentioned docu- The Treaty between Liechtenstein and Austria regulates judgments, a translation of said documents may have to be provided ments, arbitral awards, settlements and public deeds in civil since Switzerland has several official languages. and commercial matters. Decisions in insolvency proceed- To obtain the recognition and enforcement of a foreign arbi- ings, decisions in inheritance and estate proceedings, decisions tral award under the New York Convention, the party applying in guardianship and tutelage proceedings, interlocutory injunc- for recognition and enforcement shall, at the time of the applications, administrative penalties, and decisions on civil law claims tion, supply the duly authenticated original award or a duly certi- rendered in criminal proceedings are excluded from the scope of fied copy thereof and the original arbitral agreement or a duly the Treaty. The requirements for the recognition of judgments certified copy thereof. are stipulated in Art. 1 of the Treaty: firstly, the ordre public of the state in which recognition is sought must not be violated. In 3.4 With reference to each of the specific regimes set particular, the decision must not violate the principle of res judi- out in question 1.1, on what grounds can recognition/ cata. Secondly, the decision must have been rendered by a court enforcement of a judgment be challenged under the which was competent to do so in accordance with Art. 2 of the special regime? When can such a challenge be made? Treaty. Thirdly, the decision must be final and binding as well as enforceable. And finally, in case of judgments by default, In case of the treaties with Austria and Switzerland, judgments summary court orders and payment orders, the opposing party which are sought to be recognised and enforced must not be must have been summoned in accordance with the law.

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reviewed as to the correct application of substantive law. It may 52 Other Matters only be assessed whether they comply with the requirements stipulated in Arts 1 and 5 of the Treaty. Recognition and enforcement of foreign arbitral awards under 5.1 Have there been any noteworthy recent (in the the New York Convention can be challenged on the grounds last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign stipulated in Art. V. These include: judgments? Please provide a brief description. ■ lack of a valid arbitration agreement; ■ violations of the right to be heard; ■ excess of the scope of the arbitration agreement; As Liechtenstein has a quite restrictive approach regarding the ■ irregularities in the constitution of the arbitral tribunal or recognition and enforcement of foreign judgments; there are not the proceedings; many noteworthy recent legal developments in this regard. ■ lack of a final and binding award; However, Liechtenstein enforcement law has been and is ■ lack of objective arbitrability; and currently being revised. The most recent amendments entered ■ violation of public policy. into force on 1 January 2021. In particular, the new rules provide that the garnishment of wages shall take priority over the seizure of 42 Enforcement movable property. Furthermore, it will now be possible to garnish wages even if the debtor’s employer is unknown. Moreover, the compulsory auction and the forced administration of immovable 4.1 Once a foreign judgment is recognised and property are being revised and adjusted to Austrian enforcement enforced, what are the general methods of enforcement law (which served as a model for Liechtenstein enforcement law). available to a judgment creditor? The proposal to introduce exequatur proceedings (proceedings in which foreign documents are formally declared as enforceable Liechtenstein enforcement law provides for various methods instead of determining their enforceability as a preliminary ques- of enforcement. On the one hand, a distinction is made as to tion in the course of enforcement proceedings) was rejected. whether the judgment to be enforced is based on a monetary claim or on a claim for specific performance and, on the other hand, against what kind of assets enforcement is sought. 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking If the judgment is based on a monetary claim, the creditor is to recognise and enforce a foreign judgment in your provided with the following enforcement measures: with regard jurisdiction? to immovable property, the debtor may demand forced creation of a mortgage, forced administration or compulsory auction. As regards movable property, enforcement is made by way of Foreign judgments are principally not enforceable in seizure, valuation and compulsory sale. Lastly, attachment and Liechtenstein. Though Liechtenstein law offers a few routes transfer of receivables (and other assets) is possible. to finally obtain what a Liechtenstein debtor owes, the effort If the judgment is based on a claim for specific performance, to enforce a foreign judgment in Liechtenstein often leads to an the creditor has the following options: with regard to the entirely new judging of the merits of the case in Liechtenstein. surrender of movable property, the creditor may order the bailiff Thus, instead of initiating legal proceedings against a to seize the specified property and deliver it against acknowl- Liechtenstein debtor outside Liechtenstein, even if that is done edgment; as regards the transfer of immovable property, the through a contractual jurisdiction clause, the substantial diffi- creditor may order the bailiff to evict the property and confer culties, additional costs and efforts required for the enforce- possession upon the creditor; or finally, the performance or ment of a foreign judgment in Liechtenstein may overall make it permission of an act or omission by the debtor may be achieved easier, more efficient and cheaper to sue a Liechtenstein debtor by different means: the creditor may have a third party perform at the outset in Liechtenstein. the act in question and demand the corresponding costs from the debtor by way of attachment and transfer. If the act cannot be performed by a third party, the debtor may be compelled to perform it by way of coercive detention or fines. The same applies to omissions or permission of an act.

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Thomas Nigg is a Liechtenstein lawyer and citizen, currently practising in Vaduz. He studied law at the University of St. Gallen (Switzerland), where he obtained his Master of Arts in Legal Studies HSG (M.A. HSG) in 2008. In 2007 he began practising as a lawyer in Liechtenstein and was admitted to the Liechtenstein Bar in 2010. In 2014 he was appointed partner of Batliner Gasser Attorneys at Law (now: GASSER PARTNER Attorneys at Law). In 2016 he was appointed senior partner of GASSER PARTNER Attorneys at Law. In 2018, he completed an Executive Master of Laws (LL.M.) in company, foundation and trust law at the University of Liechtenstein. His main areas are representing clients, mostly corporations or high-net-worth individuals, before courts in civil, criminal and administrative matters and assisting clients in commercial, corporate and criminal law as well as concerning banking and regulatory issues in both national and international affairs. In addition, he is a co-author of “Litigation and Arbitration in Liechtenstein”, the Liechtenstein chapter in “The Asset Tracing and Recovery Review” and has authored articles on various legal topics.

GASSER PARTNER Attorneys at Law Tel: +423 236 30 80 Wuhrstrasse 6 Email: [email protected] 9490 Vaduz URL: www.gasserpartner.com/en Liechtenstein

Domenik Vogt is a senior associate at GASSER PARTNER Attorneys at Law, currently practising in Vaduz. Before joining GASSER PARTNER in 2015, he studied business law at the Vienna University of Economics and Business, where he earned his Bachelor’s degree in law (LL.B.) in 2012 and his Master’s degree (LL.M.) in 2014. During his Master’s degree, he spent a semester abroad at the University of Chicago in 2013. After graduating from the Vienna University of Economics and Business, he studied at the University of Cambridge (Christ’s College), where he obtained his second Master’s degree (LL.M.) in 2015. In 2015, he began practising in Liechtenstein and passed the Bar exam in 2017. In parallel to his work at GASSER PARTNER, he completed the doctoral programme at the University of Zurich and wrote a dissertation on the Liechtenstein establishment (Anstalt). His main areas of practice include civil law and law of succession, corporate and foundation law, M&A, litigation and arbitration, administrative and tax law.

GASSER PARTNER Attorneys at Law Tel: +423 236 30 80 Wuhrstrasse 6 Email: [email protected] 9490 Vaduz URL: www.gasserpartner.com/en Liechtenstein

As an international independent law firm, GASSER PARTNER exclusively Owing to our size and expertise, we have specialists in every area of the focuses on “classic” attorney-at-law activities. This primarily comprises law. In particular, this enables us to efficiently solve complex, international the legal representation of clients before courts and public authorities, as cases. well as providing advice in all areas of the law. As one of the leading law www.gasserpartner.com/en 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.

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Luxembourg Luxembourg

Pierre Thielen Avocats S.à r.l. Peggy Goossens

12 Country Finder Lugano Convention of 1.1 Please set out the various regimes applicable to 16 September 1988 on recognising and enforcing judgments in your jurisdiction State parties Jurisdiction and and the names of the countries to which such special to multilateral Section 2. regimes apply. the Enforcement convention. of Judgments in Civil and Applicable Relevant Corresponding Commercial Law/Statutory Jurisdiction(s) Section Below Matters. Regime Convention of All jurisdictions for Luxembourg 29 July 1971 which no EU or New Code of between the bilateral or multi- Section 2. Civil Procedure Grand Duchy of lateral conventions (“NCPC”). Luxembourg and apply. the Republic of Multilateral conventions including: Austria on the State parties Brussels Treaty Recognition and to multilateral Section 2. of 24 November Enforcement convention. 1961 between of Judgments Belgium, the and Authentic Netherlands and Instruments Luxembourg on in Civil and the Jurisdiction, State parties Commercial Bankruptcy, to multilateral Section 2. Matters. Validity and convention. New York Enforcement Convention on of Judgments, the Recognition State parties Arbitration and Enforcement to multilateral Section 2. Awards and of Foreign convention. Authentic Arbitral Awards Instruments. 1958 (“New York Brussels Convention”). Convention of Hague 27 September Convention of 2 1968 on October 1973 on Jurisdiction and State parties Recognition and State parties the Enforcement to multilateral Section 2. Enforcement to multilateral Section 2. of Judgments convention. of Decisions convention. in Civil and Relating to Commercial Maintenance Matters, as Obligations. amended. State parties Bilateral to bilateral Section 3. conventions. conventions.

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22 General Regime recognition and enforcement of a foreign judgment, there must be a connection with the Luxembourg jurisdiction; namely, that the domicile or residence of the defendant is located in 2.1 Absent any applicable special regime, what is the Luxembourg or that the place of enforcement is located in legal framework under which a foreign judgment would Luxembourg (Article 680 of the NCPC). be recognised and enforced in your jurisdiction?

The legal framework under which a foreign judgment would be 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal recognised and enforced in Luxembourg absent any applicable effects of recognition and enforcement respectively? (international bilateral or multilateral treaty or regulation of the European Union) can be found in the NCPC and in the Civil Code. Article 678 of the NCPC provides that judgments rendered by In Luxembourg there is a difference between recognition and foreign courts will be enforceable in Luxembourg as provided enforcement of judgments, even though Article 678 of the for in Articles 2123 and 2128 of the Civil Code. NCPC refers only to enforcement. In the event of a special regime, the rules of this regime will Recognition is used to introduce into the Luxembourg replace and annul the NCPC which provides for a regime of legal order a situation established by a foreign judgment: for recognition and enforcement by default. example, a party may apply for recognition to prevent a claim already judged by a foreign court from being reintroduced in Luxembourg, to establish a status or, on the contrary, to support 2.2 What constitutes a ‘judgment’ capable of a new claim made in Luxembourg on the basis of the legal situ- recognition and enforcement in your jurisdiction? ation created by a foreign judgment. Enforcement refers to the situation in which, in addition to A “judgment” which may be recognised and enforced in introducing the situation judged abroad into the Luxembourg Luxembourg refers to any foreign decision in civil and commer- order, it is necessary to force a practical act. In this case, in addi- cial matters taken by an official authority having jurisdiction to tion to recognition, enforcement must also be pursued. This is settle a dispute in a binding manner. the case, for example, when the foreign judgment concerns an Any such decision may be recognised or declared enforce- order to perform a certain act. Enforcement then allows a party able, whatever it may be called and whatever the nature of the to take coercive measures against the debtor on Luxembourg authority which gave it. territory. This can, for example, be orders, judgments by default, injunc- When recognised, the foreign judgment acquires the same tions, interim measures as well as public acts or arbitral awards. legal force and effects as Luxembourg judgments, thus giving full access to the enforcement measures available under local law. 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and 2.6 Briefly explain the procedure for recognising and enforceable in your jurisdiction? enforcing a foreign judgment in your jurisdiction.

As regards to the form, there is no particular requirement, except Judgments from a Member State pronounced since 10 January that the decision must be given in writing and must contain an 2015 are recognised in the other Member States without the order which can be executed (Court of Appeal of Luxembourg need for any procedure (abolition of exequatur). No procedure 14 May 1975, Pas.23, p. 138). is required for the recognition of those foreign judgments in Article 677-1 of the NCPC also provides that: “No decision, Luxembourg. court settlement or authentic instrument received by the public Foreign judgments subject to a treaty must be submitted officer may be enforced unless it bears the same title as the laws to simplified exequatur formalities to have legal effects in and is terminated by the formula from the officers of justice, as Luxembourg. stated in Article 254.” The party seeking enforcement has to make a request to the As regards to the substance, the foreign judgment must satisfy President of the District Court who will grant an order if all the the conditions in accordance with Article 678 of the NCPC and criteria are met. A lawyer at the court is required to intervene. Articles 2123 and 2128 of the Luxembourg Civil Code: The court will examine the grounds for granting leave for ■ The foreign judgment must not be contrary to Luxembourg enforcement (see the answer to question 2.3), as well as the public order. grounds for refusing enforcement and will decide based only on ■ The foreign judgment must be enforceable in the country documents, i.e. without conducting a hearing or else involving where it has been rendered. the debtor. This unilateral procedure was designed to grant the ■ The foreign judgment must have been given by a jurisdic- creditor the advantage of being able to gain enforcement access tion recognised in Luxembourg. without the debtor being aware. ■ The foreign judgment is not contrary to a judgment of a Foreign judgments not subject to a treaty or EU law must be local court which was issued in the same case between the submitted to the exequatur formalities to have legal effect in same parties. Luxembourg in the presence of the prosecutor, who will make ■ The defendant had proper notice of the proceedings, sure the public’s interests are preserved. meaning the party who lost was not deprived of the right to a defence. 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be 2.4 What (if any) connection to the jurisdiction is made? required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? A foreign judgment may only be challenged on the grounds that:

In order for Luxembourg courts to accept jurisdiction for the

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■ the foreign judgment does not meet the conditions set out For this reason, the existence of a contrary local law or of a in question 2.3 above or if the requirements provided by previous judgment on the same or a similar matter but between the applicable treaty/convention are not fulfilled; different parties is irrelevant, unless the recognition and enforce- ■ the foreign judgment was procured by fraud; or ment of the foreign judgment would lead to incompatibility with ■ the foreign judgment conflicts with another national Luxembourg public policy rules. judgment. Under no circumstances may the decision be reviewed on the 2.11 What is your court’s approach to recognition and merits (Article 681 of the NCPC). enforcement of a foreign judgment that purports to Against the decision authorising enforcement, the party apply the law of your country? against whom enforcement is sought may appeal to the High Court of Justice sitting in appeal proceedings within one month The rule is that under no circumstances may the foreign decision of service of the decision when the appellant is domiciled in the be reviewed on the merits. Luxembourg courts cannot review country and within two months when the appellant is domi- the merits of a foreign judgment, even if a foreign judgment ciled abroad. The decision handed down by the Court may be incorrectly applied Luxembourg law. appealed in cassation in the manner and within the time limits The only exception would be that the recognition and enforce- provided for in civil matters under ordinary law. ment of the foreign judgment would result in an incompatibility Against the decision rejecting the application for exequatur, with Luxembourg public policy rules. the applicant may appeal to the High Court of Justice sitting in appeal proceedings. This appeal must be lodged within one month of notification of the decision rejecting the request. 2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? 2.8 What, if any, is the relevant legal framework Please explain. applicable to recognising and enforcing foreign judgments relating to specific subject matters? No. The same rules apply to the entire country. With the exception of matters governed by European texts, the Luxembourg provisions are contained in the NCPC and are of a 2.13 What is the relevant limitation period to recognise general nature. Provisions derogating from the general regime and enforce a foreign judgment? or special rules apply, i.e.: ■ To the status and capacity of persons (Administrative The only specific provision applying to a limitation period is Court of Luxembourg, 19 March 2003, role 15288). that a foreign judgment must be enforceable in its country of ■ Mutual legal assistance in matters of custody of and access origin. There is therefore not any precise period provided for, to children and maintenance obligations (Articles 1111 et since the answer depends on the law of origin, more precisely on seq. of the NCPC). the law applicable to the foreign judgment. ■ Foreign confiscation decisions in criminal matters As far as Luxembourg judgments are concerned, the limita- (Articles 659 et seq. of the Code of Criminal Procedure). tion period for the enforcement of a Luxembourg court judg- ■ Arbitral sentences (Article 1251 of the NCPC). ment is 30 years. ■ Precautionary seizures of bank accounts. ■ Decisions taken in application of European small claims 32 Special Enforcement Regimes Applicable procedures or payment orders. to Judgments from Certain Countries

In the event of a local judgment between the same parties and European judgments are recognised upon the simple produc- on the same issue, recognition and enforcement will be refused tion of a copy of the decision translated and the certificate on the grounds of incompatibility. required by Council Regulation (EU) No. 1215/2012 of the If there are local proceedings pending between the same European Parliament and the Council of 12 December 2012 on parties and on the same issue, the application for recognition and the Jurisdiction, Recognition and Enforcement of Judgments in enforcement will be suspended until the local decision is rendered. Civil and Commercial Matters. Foreign judgments subject to a treaty can be recognised on 2.10 What is your court’s approach to recognition and basis of the requirements provided by the treaty. enforcement of a foreign judgment when there is a Foreign judgments not subject to a treaty or EU law are conflicting local law or prior judgment on the same or a subject to the requirements provided for in the questions above. similar issue, but between different parties?

3.2 With reference to each of the specific regimes set In Luxembourg, incompatibility with local law does not in out in question 1.1, does the regime specify a difference itself constitute an automatic ground for refusing recognition between recognition and enforcement? If so, what is the or enforcement of a foreign enforcement order, it must further- difference between the legal effect of recognition and more be that such incompatibility constitutes a violation of the enforcement? fundamental principles of Luxembourg law. None of them provide for rules that would be specific to either

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procedure. There is no procedural distinction and recognition Luxembourg law provides especially for this purpose that and enforcement are not differentiated in the texts. the decision granting enforcement automatically carries with it the authorisation to proceed with such measures – in a forced manner, if necessary. The most frequently used and effective 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for methods are the taking of mortgages, the forced sale of the debt- recognising and enforcing a foreign judgment. or’s property and assets, the seizure of bank accounts, company shares or salary, etc. The enforcement decision may also include an order to do or The procedures are essentially the same as in the specific not to do certain specific actions on pain of pecuniary penalties. schemes listed in section 2. The difference lies in the list of documents to be produced, which may differ according to the agreements signed. Some treaties require a standard form 52 Other Matters and expressly govern the documentation that a party seeking enforcement has to furnish, i.e. the Lugano Convention, which 5.1 Have there been any noteworthy recent (in the requires original and standard forms in its annex. last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. 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 Luxembourg is currently working on a draft law reforming the special regime? When can such a challenge be made? arbitration law in general and which will also contain new articles to simplify the recognition and enforcement of arbitration decisions (Bill n°7671 reforming arbitration and modifying Title I. of There are no specific rules applying only to judgments from Book III “Arbitrations” of the NCPC). certain countries. The conditions vary according to the applicable texts and the provisions they contain. European instruments, treaties or conventions have their own specific rules on 5.2 Are there any particular tips you would give, or recognition and enforcement of judgements which will prevail critical issues that you would flag, to clients seeking such as those detailed in section 2. to recognise and enforce a foreign judgment in your jurisdiction? Under Article 663 of the NCPC, for example, the exequatur of a foreign confiscation order may be refused if the request is likely to be qualified by Luxembourg law as a political offence or The advice to be given is to bear in mind that there are provi- if there are serious reasons to believe that the request is based on sional measures available to guarantee the solvency of the debtor. considerations of race, religion, nationality or political opinion. Luxembourg is indeed interesting in this respect as it allows provisional enforcement measures on the basis of a foreign judg- 42 Enforcement ment. It is good to know that these procedures exist and can be implemented even before starting legal recognition/enforcement proceedings to secure the creditor. 4.1 Once a foreign judgment is recognised and The applicant will only have to prove the existence of a threat enforced, what are the general methods of enforcement available to a judgment creditor? to the recovery of his claim. A negative point is that for the creditor who does not know the solvency of his debtor, data related to this are difficult to The general methods of enforcement available to a judgment collect. There is no accessible register or means to enquire about creditor once a foreign judgment is recognised and enforced are solvency as some other European countries. the same as for any local judgment – the foreign judgment will have the same legal force and effect as a Luxembourg enforcement order, which gives full access to the enforcement measures available under local law.

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Peggy Goossens, admitted to the Belgian Bar in 2003 and to the Luxembourg Bar in 2007, is the head of our litigation department and mainly handles litigation matters relating to contractual and non-contractual liability as well as cases relating to civil and commercial contracts. Peggy is also “Chargée de Cours” in different institutions and Member of the Commission of the Luxembourg Bar for civil and commercial procedures. As a result of her excellence and her great experience in corporate law as well as in dispute resolution, she became Partner in 2017. She speaks French, English and Italian.

Pierre Thielen Avocats S.à r.l. Tel: +352 44 62 411 5–11 Avenue Gaston Diderich Email: [email protected] L-1420 Luxembourg URL: www.pierrethielen.lu

Pierre Thielen Avocats S.à r.l. is an independent boutique law firm focusing on high-end legal services. Our aim is to provide legal services at the highest standard and we believe that quality work is not a matter of size but rather of character and personal dedication of the professionals involved. Our services to corporate clients include: ■ Corporate litigation. ■ Contracts and agreements. ■ Arbitration. ■ Transactional advice. ■ Corporate structures. ■ Articles of association and shareholders’ agreements. www.pierrethielen.lu

Enforcement of Foreign Judgments 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London 98 Chapter 18 Malaysia Malaysia

Jack Yow

Daphne Koo

Rahmat Lim & Partners Allen Choong

Probate and 12 Country Finder Commonwealth Administration Act Sections 2 and 3. countries. 1.1 Please set out the various regimes applicable to 1959 (“PBA”). recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply. 22 General Regime

2.1 Absent any applicable special regime, what is the Applicable Law/ Relevant Corresponding legal framework under which a foreign judgment would Statutory Regime Jurisdiction(s) Section Below be recognised and enforced in your jurisdiction? The United Kingdom, Hong The common law generally provides for the recognition and Kong Special enforcement of a foreign judgment via the initiation of a fresh Administrative suit in court to enforce such judgment. Foreign monetary judg- Region of the ments which fall within the ambit of REJA may, however, only People’s Republic be enforced via a registration under REJA. In practice, regis- of China (“Hong tration under REJA appears to be the most common manner Kong”), Singapore, in which foreign monetary judgments are enforced in Malaysia. Reciprocal New Zealand, Enforcement of Republic of Sri Sections 2, 3 2.2 What constitutes a ‘judgment’ capable of Judgments Act Lanka (Ceylon), India and 5. recognition and enforcement in your jurisdiction? 1958 (“REJA”). (excluding State of Jammu and Kashmir, State of Manipur, A judgment capable of recognition and enforcement in Malaysia Tribal areas of State has been outlined in REJA in its interpretation section as: of Assam, Scheduled ■ a judgment or order given or made by a court in any civil areas of the States proceedings; or of Madras and ■ a judgment or order given or made by a court in any Andhra), and Brunei criminal proceedings for the payment of a sum of money Darussalam. in respect of compensation or damages to an injured party; and Australia, Brunei, ■ except in relation to a country or territory outside the Ceylon, England, Commonwealth, an award in proceedings in an arbitra- Bailiwick of the tion if the award has, pursuant to the law in force in the Island of Guernsey, place where it was made, become enforceable in the same Maintenance Hong Kong, India manner as a judgment given by a court in that place; and Orders (Facilities (excluding Jammu and a judgment given in any court on appeal from a judgment for Enforcement) Kashmir), Island of Section 3. given in the High Court shall be deemed to be a judgment Act 1949 Jersey, Isle of Man, given in the High Court, a judgment capable of recogni- (“MOFEA”). New Zealand, Norfolk tion and enforcement in Malaysia. Island, Northern The judgment must also satisfy the other requirements listed Ireland, Pakistan, within REJA to ensure that the judgment is capable of being Singapore, South recognised and enforced. Africa and Wales.

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2.3 What requirements (in form and substance) must ■ Alternatively, an action on a judgment may be commenced a foreign judgment satisfy in order to be recognised and by way of presentation of an originating summons with enforceable in your jurisdiction? a supporting affidavit, with a certified sealed copy of the foreign judgment annexed. At the hearing of the origi- The requirements that a foreign judgment must satisfy in order nating summons, the court will, if it is satisfied that the to be enforceable under REJA are as follows: judgment ought to be recognised and enforced, grant an a) the judgment must be a monetary judgment; order in terms of the originating summons. b) the judgment must be a judgment of a superior court from The procedure for recognition and enforcement of a foreign a reciprocating country under the First Schedule of REJA; judgment under REJA is as follows: c) the foreign court must have had jurisdiction; ■ The foreign judgment creditor must lodge an originating d) the judgment was not obtained by fraud; summons supported by an affidavit. In practice, the initial e) the enforcement of the judgment is not contrary to public hearing date is sought on an ex parte basis. The affidavit policy in Malaysia; and in support must exhibit a duly verified, or certified, or f) the judgment must be final and conclusive. authenticated copy of the foreign judgment. If the judg- The requirements for an action on a foreign judgment at ment is not in English, a translation certified by a notary common law are similar to those under REJA, with the only public must also be filed. The affidavit must comply with substantive difference being that the judgment need not be a the formalities listed under Order 67 rule 3 of the Rules of judgment of a superior court from a reciprocating country under Court (“ROC”), including, among other things: REJA. ■ stating the name, trade or business and usual or last known address of the judgment creditor and judgment debtor; and 2.4 What (if any) connection to the jurisdiction is ■ stating to the best of the information or belief of the required for your courts to accept jurisdiction for deponent that: recognition and enforcement of a foreign judgment? ■ the judgment creditor is entitled to enforce the judgment; The countries must be a country or territory within the ■ the judgment has not been satisfied; Commonwealth and expressly specified and listed in REJA, ■ the judgment does not fall within any of the cases MOFEA and PBA, respectively. in which the judgment may not be ordered to be For example, the PBA states that the “Commonwealth” registered under REJA; includes any country which the Yang di-Pertuan Agong may ■ as at the date of the application the judgment may (by notification published in the Gazette) direct to be included be enforced by execution in the country of the among the countries to which the recognition and enforcement original court; and of foreign judgment applies. ■ if registered, the registration would not be liable to be set aside under REJA. 2.5 Is there a difference between recognition and ■ On the hearing date, the court will, if the application enforcement of judgments? If so, what are the legal appears on its face to comply with REJA, grant leave to effects of recognition and enforcement respectively? register the same. The order for leave must state the period within which an application may be made to set aside the registration, and that execution on the judgment will not Yes, there is. Recognition of a foreign judgment refers to the be issued until the expiration of that period. Typically, the acceptance by the Malaysian courts that such judgment gives court will grant 14 to 21 days for such an application to be rise to vested rights through a foreign judicial process. The made. The order for leave to register the foreign judgment recognition of a foreign judgment is an essential precursor to must be served on the judgment debtor with a notice of the enforcement of such judgment, but does not necessarily registration. mean that such judgment will then be enforced in Malaysia. For ■ The person serving the notice of registration must endorse example, a foreign judgment may be relied upon as establishing the notice within three days after the date on which the a set of facts for the purpose of Malaysian proceedings, even if notice was served. enforcement of the judgment is not sought. Enforcement of a ■ If an application to set aside the registration of the judg- foreign judgment, on the other hand, refers to the process by ment is filed by the judgment debtor, the court will fix a which the judgment may be executed or enforced in Malaysia as hearing date for the application. In such instance, execu- though it were a Malaysian judgment (for example, by attaching tion of the judgment may not be levied until and after such the assets of a judgment debtor to satisfy a judgment debt). an application has been determined.

2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Insofar as the common law enforcement of a non-REJA foreign judgment is concerned, the procedure is as follows: An action on a foreign judgment under common law may be ■ An action on a judgment may be commenced by way of a opposed on the following grounds: writ action. Once the writ and relevant statement of claim a) that the foreign court had no jurisdiction; have been served on the defendant and the defendant has b) that the judgment was obtained by fraud; entered an appearance, the plaintiff may file an application c) that enforcement of the judgment would be contrary to for a summary judgment, annexing a certified sealed copy public policy; or of the foreign judgment. The court may grant a summary d) that the proceedings in which the judgment was obtained judgment if no triable issue is raised by the defendant. were opposed to natural justice.

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Under REJA, the grounds upon which registration of a would not by itself be a bar to enforcement of a foreign judgment foreign judgment may be set aside are as follows: under common law or under REJA. Enforcement of a foreign judg- a) judgment is not a judgment to which Part II of REJA ment, however, will be refused (or, in the case of REJA, the regis- applies, or was registered in contravention of REJA; tration of the foreign judgment will be liable to be set aside) if the b) judgment is not a judgment of a superior court or a recipro- reason for such conflict is contrary to the public policy in Malaysia. cating country or was registered in contravention of REJA; c) court of the country or the original court had no jurisdic- 2.11 What is your court’s approach to recognition and tion in the circumstances of the case; enforcement of a foreign judgment that purports to d) judgment debtor, being a defendant in the proceedings in apply the law of your country? the original court, did not receive notice of such proceedings in sufficient time to enable him to defend the proceed- The approach is no different from that applied to any other ings and did not appear; foreign judgment. The common law enforcement or registra- e) judgment was obtained by fraud; tion under REJA of a foreign judgment may only be challenged f) enforcement of the judgment would be contrary to public on the grounds set out in question 2.7 above. policy; or g) rights under the judgment are not vested in the person by whom the application for the registration was made. 2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? 2.8 What, if any, is the relevant legal framework Please explain. applicable to recognising and enforcing foreign judgments relating to specific subject matters? No, the rules and procedures outlined above apply throughout Malaysia. The following are the relevant legal frameworks applicable to specific subject matters: ■ REJA – the registration of final and conclusive monetary 2.13 What is the relevant limitation period to recognise judgments made by superior courts of reciprocating coun- and enforce a foreign judgment? tries under REJA. ■ MOFEA – the registration of orders for maintenance Insofar as common law enforcement is concerned, the Limitation payments in a matrimonial relationship. Act 1953 provides that an action upon any judgment must not be ■ PBA – the re-sealing of a grant of probate or letter of admin- brought after the expiration of 12 years from the date on which istration issued by a court of a Commonwealth country. the judgment became enforceable, and no arrears of interest in respect of any judgment debt can be recovered after the expira- 2.9 What is your court’s approach to recognition and tion of six years from the date on which the interest became due. enforcement of a foreign judgment when there is: (a) a Insofar as REJA is concerned, a judgment creditor may apply conflicting local judgment between the parties relating to the relevant High Court to register a judgment within six to the same issue; or (b) local proceedings pending years from the date of the judgment, or where there have been between the parties? proceedings by way of an appeal against the judgment, after the date of the last judgment given in those proceedings. Conflicting local judgment between the parties relating to the same issue 32 Special Enforcement Regimes Applicable A local judgment between parties relating to the same issue to Judgments from Certain Countries would amount to res judicata between the same parties. This is a form of estoppel against re-litigation of the same subject matter 3.1 With reference to each of the specific regimes in Malaysia. It is therefore likely that the court would dismiss set out in question 1.1, what requirements (in form an action on the judgment (or allow an application to set aside and substance) must the judgment satisfy in order to registration of the foreign judgment under REJA), either on be recognised and enforceable under the respective the basis that the foreign court did not have jurisdiction or that regime? registration would be contrary to public policy. REJA Local proceedings pending between the parties For a judgment to be registered under REJA, it must be a mone- If the local proceedings are pending between the parties, the tary judgment made by a superior court of a reciprocating court may adjourn the hearing of the action on the judgment (or country under REJA. The judgment must also be final and the application to set aside registration of the judgment under conclusive between the parties. The full details are set out in REJA, as applicable) until the determination of the local proceed- questions 2.3 and 2.6 above. ings between the parties. This is especially so if, in the local proceedings, one of the parties is alleging that the foreign court MOFEA lacked jurisdiction, that the judgment debtor had no notice of a) The judgment must be a maintenance order (defined as the original proceedings, or the judgment was obtained by fraud. an order other than an order of affiliation, for the period- ical payment of sums of money towards the maintenance 2.10 What is your court’s approach to recognition and of the spouse or other dependants of the person against enforcement of a foreign judgment when there is a whom the order is made, which includes, with reference conflicting local law or prior judgment on the same or a to Northern Ireland, an order or decree for the recovery similar issue, but between different parties? or repayment of the cost of relief or maintenance made by virtue of the provisions of the Imperial Acts entitled in the A conflicting local law, or prior judgment between different parties, Poor Relief (Ireland) Acts 1893 to 1914).

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b) The maintenance order must have been made by a court in against whom the order is made. The order is then registered, a reciprocating country under MOFEA. and has the same effect and force as if it was granted within the c) A certified copy of the order would have to have been jurisdiction. Pursuant thereto, proceedings may be taken on the transmitted to the Minister charged with responsibility for order, and the court in which the order was registered has the the judiciary in Malaysia, who would have had to send the power to enforce the order. same to the appropriate local court for registration in the prescribed manner (the local court for this purpose being PBA defined as a Sessions Court or a Magistrate’s Court having Where a Court of Probate from a Commonwealth country has jurisdiction to try suits relating to maintenance of wives or issued an order for the sealing of a grant of probate or letter children). of administration, the High Court has the power to reseal such document. The application for the resealing of a grant PBA of probate must be made by way of an originating summons a) Two certified sealed copies of the grant of probate or supported by an affidavit sworn by the administrator or exec- letter of administration issued by a court from the relevant utor setting out therein, inter alia, the relationship of adminis- Commonwealth country. trators to the deceased, particulars of the deceased, and a list b) A list of the deceased’s liabilities and assets in Malaysia. of the deceased’s liabilities and assets in Malaysia as well as the c) A list of the beneficiaries of the deceased’s estate. list of the beneficiaries of the deceased’s estate. The applicant d) A certified true extract of the deceased’s death certificate. must also furnish two certified sealed copies of the grant of e) A bond made by an administrator as a form of security. probate or letter of administration and a certified true extract of the deceased’s death certificate. An administrator must also make a bond as a form of security. The court must thereafter 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference hold a hearing and once the court has granted the order for between recognition and enforcement? If so, what is the the resealing of the grant of probate, it must issue a Notice of difference between the legal effect of recognition and Resealing to the original court by whom the grant was issued. enforcement? At the point of resealing, the grant will have the same force and effect in Malaysia as it did in the original jurisdiction. There is no express provision specifying the distinction between recognition and enforcement under each specific regime. The 3.4 With reference to each of the specific regimes set distinction, however, is implicit in that a foreign judgment must out in question 1.1, on what grounds can recognition/ first be recognised by the Malaysian courts before it may be enforcement of a judgment be challenged under the enforced as though it were a local judgment. Actual enforce- special regime? When can such a challenge be made? ment of the judgment would be subject to the laws and rules relating to the specific enforcement procedure in question. For REJA example, the rules relating to the enforcement of a judgment via Under section 5 of REJA, registration of a judgment may be set a writ of seizure and sale would differ from the rules relating to aside on the following grounds: garnishee proceedings. a) the judgment was registered in contravention of REJA; b) the originating court which gave the judgment had no 3.3 With reference to each of the specific regimes set jurisdiction to do so; out in question 1.1, briefly explain the procedure for c) the judgment debtor did not receive notice of the proceed- recognising and enforcing a foreign judgment. ings in regard to the judgment in sufficient time to allow him to 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 appli- Malaysian public policy; cant would be required to file an ex parte originating summons f) the rights under the judgment would be contrary to with an affidavit in support containing the information required Malaysian public policy; or under Order 67 rule 3 of the ROC. An affidavit must also be g) the rights under the judgment are not vested in the person lodged affirming that the judgment may be enforced in the who applied for the registration of the judgment. original country. The documents must then be filed with the The setting aside of a registered judgment may be undertaken relevant High Court, which will then give the appropriate order. by way of an application to court, within the duration specified Upon registration of the judgment pursuant to an order of the in the notice of registration of the foreign judgment. High Court, the judgment will then be recognised as a judgment of the High Court of Malaya or Sabah & Sarawak (as applicable). In order to issue an execution on the registered judgment, the MOFEA There are no specific provisions allowing for a challenge to a applicant must personally serve a notice of registration of the maintenance order duly registered under MOFEA. Insofar as judgment on the respondent. Execution of the judgment may provisional orders made by the original court are concerned, the only be effected upon the lapse of the time period given to the person against whom the order is made has a right to raise any respondent to set aside the registration of the judgment, at which defence which he might have raised in the original proceedings point the applicant must produce to the Sheriff an affidavit of had he been a party thereto, but no other defence. service proving that service was effected upon the respondent, as well as any order made by the court in relation to the judgment. PBA An order on an application for the re-sealing of probate or MOFEA letters of administration will not be granted if, at the time of his The relevant foreign order must be transmitted to the Minister death, the deceased was not domiciled within the jurisdiction of in charge of the Judiciary in Malaysia, who is then required to the court by which the grant was issued, unless the grant is such forward the order to the local court in the district of the person

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as the High Court would have made. The resealing is a matter of The position however was different in Malaysia where section discretion, and the court may defer the hearing of or even refuse 91(1) of the Road Transport Act 1987 did not require third-party the application in special circumstances (for example, if the will coverage in motor policies to include passenger or pillion riders. is “wholly or mainly operative” under lex domicile). The dissimilarity of the provisions of law resulted in differing decisions by the courts in both countries as Malaysian case law 42 Enforcement had previously decided that Malaysian motor insurers were not liable to satisfy a judgment obtained by a victim of an accident 4.1 Once a foreign judgment is recognised and involving a Malaysian-registered vehicle in Singapore. enforced, what are the general methods of enforcement The High Court in Malaysia therefore held that as the core available to a judgment creditor? issue in the foreign judgment had been decided to the contrary in Malaysia, enforcement of the foreign judgment would be contrary to public policy in Malaysia and it would not be just or Once a foreign monetary judgment is recognised, a judgment convenient for the foreign judgment to be enforced in Malaysia. creditor may opt for one or more of the following enforcement Registration of the foreign judgment was accordingly set aside methods: pursuant to section 5(1)(a)(v) of REJA. a) a writ of seizure and sale; b) an application for examination of the judgment debtor; c) an application for a garnishee order; 5.2 Are there any particular tips you would give, or d) an application for a charging order; and/or critical issues that you would flag, to clients seeking e) bankruptcy or winding-up proceedings. to recognise and enforce a foreign judgment in your jurisdiction? 52 Other Matters It would be important to identify whether the foreign judgment is a monetary judgment, and whether it is a judgment of a supe- 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction rior court of a reciprocating country under REJA. This will relevant to the recognition and enforcement of foreign enable the client to determine whether an application for regis- judgments? Please provide a brief description. tration under REJA may be made, or whether an action on the foreign judgment under common law is required. Next is the issue on when an application for enforcement In the recent case of Motor Insurers’ Bureau of Singapore v AmGeneral should be made. An action on the foreign judgment or applica- Insurance Bhd [2020] 3 CLJ 581 (“Motor Insurers”), the High tion for registration under REJA may not be successful if there Court had to decide whether the registration of a foreign judg- is a pending appeal against the judgment in the original court. ment should be set aside pursuant to section 5(1)(a)(v) of REJA It would be preferable to only apply for a registration and/or on the ground that the enforcement of such a foreign judgment enforcement after all avenues of appeal have been exhausted in would be contrary to public policy in Malaysia. the original court. In Motor Insurers, the plaintiff had obtained a foreign judg- Last but not least, it is important to ensure that the formalities ment against the Malaysian motor insurer defendant from the for recognition and enforcement in Malaysia are duly complied High Court of Singapore on the basis that section 5(1) of the with. In this regard, it is often necessary to have legal counsel Motor Vehicles (Third-party Risks and Compensation) Act of from the jurisdiction of the original court work closely with Singapore required third-party coverage in motor policies to Malaysian counsel (for example, such foreign counsel may be include passenger or pillion riders. required to swear an affidavit as to the law of the country of the original court, in relation to the amount of interest due under the foreign judgment).

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Jack Yow heads the Litigation practice at Rahmat Lim & Partners. His areas of practice include corporate, banking, industrial relations and employment law litigation. Jack’s extensive experience includes, among other things, acting for a local financial institution leading to recovery of a multi-million ringgit facility from a public listed company, obtaining a favourable KLRCA (AIAC) arbitration award for the Malaysian subsidiary of a public listed German company in a multi-million contractual dispute, advising receivers and managers of companies in receivership as well as acting for liquidators in insolvency proceedings. Jack is consistently recognised by legal publications including Chambers Asia-Pacific for his professionalism. The publication noted him as being “very professional, ethical and really humble” and, he is described as “very knowledgeable”. The Legal 500 Asia Pacific recognised that Jack “gives sound advice” and quoted him as giving “pragmatic advice and out-of-the-box thinking”. Jack was also listed as a Local Disputes Star in Benchmark Asia-Pacific.

Rahmat Lim & Partners Tel: +603 2299 3898 Suite 33.01, Level 33, The Gardens North Tower Email: [email protected] 59200 Kuala Lumpur URL: www.rahmatlim.com Malaysia

Daphne Koo’s areas of practice include corporate and commercial litigation, admiralty and maritime law, and land reference proceedings. Her current portfolio focuses on corporate litigation particularly shareholders’ disputes and breach of directors’ duties. She has extensive experience acting for leading commercial and financial institutions and public listed companies on court-sanctioned mergers and capital reduction exercises, international shipping companies in shipping and admiralty matters (including ship arrests), and for international and domestic companies on a diverse range of disputes. She also undertakes advisory work and regularly appears at various levels of the Malaysian courts for hearings, trials and appeals. In Benchmark Litigation, Daphne is listed as a Future Star in Commercial and Transactions and Shipping.

Rahmat Lim & Partners Tel: +603 2299 3869 Suite 33.01, Level 33, The Gardens North Tower Email: [email protected] 59200 Kuala Lumpur URL: www.rahmatlim.com Malaysia

Allen Choong’s practice includes international commercial arbitration and litigation, energy, engineering and infrastructure work in Singapore, Malaysia and the region. Dually qualified in Singapore and Malaysia, he is among the inaugural batch of select practitioners to be recognised as Accredited Specialists in Building and Construction Law by the Singapore Academy of Law. Allen also has extensive experience across a wide range of commercial and investment disputes. Allen has represented a diverse range of clients including investors, developers, contractors and consultants in international arbitrations over complex commercial, energy, engineering, infrastructure and investment disputes. He has also acted in arbitration-related litigation and other complex disputes before the courts in Singapore and Malaysia. Allen has been recognised as a leading lawyer in international arbitration by Best Lawyers since 2014. Benchmark Litigation ranks him in the areas of international arbitration, construction and commercial and transactions. Allen is also ranked Highly Regarded for project development and energy by IFLR1000. The Legal 500 Asia Pacific notes from sources that “Allen Choong keeps on top of multiple work streams and gives the client timely updates on progress”.

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Established in 2010 with just 10 lawyers, Rahmat Lim & Partners has Our team includes experienced lawyers who regularly act for and advise grown by leaps and bounds to become one of the largest and most prestig- banks, financial institutions, general creditors, liquidators, receivers and ious corporate law firms in Malaysia, highly ranked by legal directories and managers on all aspects of restructuring and insolvency matters, multina- publications in almost every field of practice. tionals, local blue chip companies, accounting firms, institutional and indi- Through our association with Allen & Gledhill LLP, Singapore and the other vidual shareholders of major listed companies and large private compa- members of the A&G family, we are closely connected to a wider network of nies, as well as boards of directors of public and private companies. best-in-class friends around the world. Our distinctive culture reflects the www.rahmatlim.com DNA which runs deep within the A&G network, as highlighted by our use of the same market-leading best practices and cutting-edge legal technology. Our Dispute Resolution team offers representation across a broad spectrum of contentious work, including banking, enforcement of security, corporate disputes, minority oppression and shareholder disputes, contentious insolvency and restructuring, probate and administration, administrative law, insurance, professional negligence, property, securities and trusts.

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Dr. Karl Briffa

Dr. Ariana Falzon

GVZH Advocates Dr. Nicole Sciberras Debono

12 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 jurisdiction The COCP does not define what constitutes a “judgment”. and the names of the countries to which such special However, Article 826 of the COCP provides that “any judgment regimes apply. delivered by a competent court outside Malta and constituting a res judicata (must be final and conclusive according to the law of the country in which it was delivered and no longer subject to Applicable Law/ Relevant Corresponding appeal) may be enforced by the competent court in Malta”. Statutory Regime Jurisdiction(s) Section Below Given that the COCP does not define what a “judgment” All jurisdic- The Code of is and given the prevailing nature of the Brussels I Recast tions for which Organisation and Civil Regulation, Article 2 of the Brussels I Recast Regulation defines no EU or bilat- Section 2. Procedure, Chapter 12 “judgment” as any judgment given by a court or tribunal of a eral conventions of the Laws of Malta. Member State, whatever the judgment may be called, including apply. a decree, order, decision, or writ of execution, as well as a deci- The British Judgments sion on the determination of costs or expenses by an officer of (Reciprocal the court. It may also include protective or provisional meas- The United Enforcement) Act, Section 3. ures, ordered by a court or tribunal which has jurisdiction as to Kingdom. Chapter 52 of the Laws the substance of a particular matter. of Malta. 2.3 What requirements (in form and substance) must 22 General Regime a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?

2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would Article 826 of the COCP states that the foreign judgment must be recognised and enforced in your jurisdiction? be delivered by a competent court outside of Malta and must be res judicata, i.e. final and conclusive according to the law of the The recognition and enforcement of foreign judgments is governed country in which it was delivered and no longer subject to appeal. by Title V of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) (“COCP”), entitled “Of the 2.4 What (if any) connection to the jurisdiction is Enforcement of Judgments of Tribunals of Countries Outside required for your courts to accept jurisdiction for Malta”. Article 826 of the COCP provides that “any judgment recognition and enforcement of a foreign judgment? delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta”. There is no requirement to establish a degree of connection with Specifically, with regard to judgments given by foreign courts Malta for the Maltese courts to accept jurisdiction for recogni- within the European Union, Article 825A provides that the tion and enforcement of a foreign judgment. provisions of Title V can only apply when they are consistent with Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commer- 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal cial matters (The “Brussels I Recast” Regulation). The latter effects of recognition and enforcement respectively? prevails if there is a conflict with the COCP.

For a judgment to be enforced, it must first be recognised.

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Recognition is giving the foreign judgment the same effect in x. where the judgment was given on any matter not included Malta as the judgment has in the country where it was decided. in the demand; There is no formal procedure for the recognition of judgments. xi. where the judgment was given in exceed of the demand; A party can rely on a foreign judgment to prevent a claim already xii. where the judgment conflicts with a previous judgment decided by a foreign court from being made in Malta; or, alterna- given in an action on the same subject matter between the tively, to support a new claim made in Malta based on the legal same parties, and constituting res judicata, provided no such situation created by that foreign judgment. plea was raised and determined by the court of origin; Enforcement is generally understood as the process of xiii. where the judgment contains contrary dispositions, specif- executing the judgment; therefore, once a judgment has been ically in the operative part; recognised, it can then be enforced in Malta in the same way xiv. where the judgment was based on evidence which, in a as a domestic judgment, providing full access to the available subsequent judgment, was declared to be false or which enforcement measures under Maltese law. was so declared in a previous judgment, but the party cast was not aware of such fact; xv. where, after the judgment, some conclusive document was 2.6 Briefly explain the procedure for recognising and obtained, of which the party producing it had no knowl- enforcing a foreign judgment in your jurisdiction. edge, or which, with the means provided by law, he could not have produced before the judgment; The party seeking enforcement must file an application before xvi. where the judgment was the effect of an error resulting the First Hall Civil Court in Malta (or in the cases of enforce- from the proceedings or documents of the cause; or ment of judgments under the British Judgments (Reciprocal xvii. where the judgment imposes a fine or a penalty upon the judg- Enforcement) Act, the Court of Appeal), containing an expla- ment debtor, or in any other way would have the practical nation of the facts of the case and a demand for an enforcement effect of enforcing a foreign penal, revenue or other public law. order, along with a certified copy of the foreign judgment and a These challenges may be made by the defendant in proceed- translation in either the Maltese or English language, along with ings instituted for the enforcement of the foreign judgment. evidence that the judgment constitutes a res judicata. Any references to currency must be converted to euros. 2.8 What, if any, is the relevant legal framework Proceedings must be served upon the opposing party, and both applicable to recognising and enforcing foreign parties have the right to make written and oral submissions. Once judgments relating to specific subject matters? a judgment is delivered by the competent court, it is open to appeal. Malta is a party to various multilateral conventions which contain 2.7 On what grounds can recognition/enforcement of a provisions regulating the recognition and enforcement of judgment be challenged? When can such a challenge be foreign judgments relating to specific subject matters, including, made? amongst others, the Cross-Border Insolvency Regulations 2006 (SI 2006/2013), the Civil Aviation Act 1982 and the Carriage of Recognition and enforcement of a judgment may be challenged Goods by Road Act 1965. on the following grounds: i. if the recognition of the judgment is manifestly contrary to 2.9 What is your court’s approach to recognition and public policy in Malta; enforcement of a foreign judgment when there is: (a) a ii. where the judgment was given in default of appearance conflicting local judgment between the parties relating of the defendant and he was not served with the docu- to the same issue; or (b) local proceedings pending ment which instituted the proceedings or with an equiv- between the parties? alent document in sufficient time and in such a way as to enable him to arrange for his defence, unless such The defendant is entitled to challenge enforcement of a foreign defendant failed to commence proceedings to challenge judgment on the basis that the judgment conflicts with a previous the judgment when it was possible for him to do so; one given in an action on the same subject matter, between the iii. if the judgment is irreconcilable with a judgment given same parties, and constituting res judicata, provided no such plea between the same parties in Malta; was raised and determined by the court of origin. iv. if the judgment is irreconcilable with an earlier judgment If proceedings are ongoing locally between the parties, given in Malta or another country involving the same and one of them seeks enforcement of a foreign judgment on cause of action and between the same parties; the same issue, the Maltese court is likely to stay the Maltese v. where the judgment was obtained by fraud on the part of proceedings until the request to recognise and enforce the any of the parties to the prejudice of the other party; foreign judgment is determined. vi. where the sworn application was not served on the party cast, provided that, notwithstanding such omission, such 2.10 What is your court’s approach to recognition and party shall not have entered an appearance at the trial; enforcement of a foreign judgment when there is a vii. where any of the parties to the suit was under legal disa- conflicting local law or prior judgment on the same or a bility to sue or be sued, provided no plea thereto had been similar issue, but between different parties? raised and determined by the court of origin; viii. where the judgment was delivered by a court having no juris- The existence of a conflicting local law or prior judgment on the diction in terms of Article 741(a) of the COCP, provided no same or similar issue between different parties would not hinder plea thereto was raised and determined by the court of origin; recognition and enforcement of the foreign judgment, as long as ix. where the judgment contains a wrong application of law, this does not amount to an incompatibility with Maltese public consisting of an application of the wrong legal provision, policy rules. rather than a misinterpretation of the correct provision;

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2.11 What is your court’s approach to recognition and that it constitutes a res judicata. The application must specify the enforcement of a foreign judgment that purports to grounds for enforcement, the amount in respect of which the apply the law of your country? foreign judgment remains unsatisfied and the amount of interest claimed. A Maltese court would not treat such a judgment any differently and would not carry out any review of the referenced Maltese 3.4 With reference to each of the specific regimes set law. out 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? 2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? In accordance with Article 3 of the British Judgments (Reciprocal Please explain. Enforcement) Act, registration of foreign judgments may be challenged on the following grounds: Private international law rules apply to the entire Maltese juris- i. where the original court acted without jurisdiction; diction indiscriminately. ii. where the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily 2.13 What is the relevant limitation period to recognise appear or otherwise submit, or agree to submit to the juris- and enforce a foreign judgment? diction of that court; iii. where the judgment debtor, being the defendant, was not There are no time limits imposed by law. duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident 32 Special Enforcement Regimes Applicable or was carrying on business within the jurisdiction of that to Judgments from Certain Countries court or agreed to submit to the jurisdiction of that court; iv. where the judgment was obtained by fraud; v. where the judgment debtor satisfies the registering court 3.1 With reference to each of the specific regimes either that an appeal is pending, or that he is entitled, and set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to intends to appeal against the judgment; or be recognised and enforceable under the respective vi. where the judgment was in respect of a cause which for regime? reasons of public policy or for some other similar reason could not have been entertained by the registering court. The British Judgments (Reciprocal Enforcement) Act, Chapter 52 of the Laws of Malta provides for the enforcement of judg- 42 Enforcement ments obtained in any civil or commercial proceedings before a superior court in the United Kingdom, whereby a sum of money 4.1 Once a foreign judgment is recognised and is made payable. These judgments may be registered in Malta enforced, what are the general methods of enforcement if the Maltese Court of Appeal considers the judgment to be available to a judgment creditor? just and convenient to be enforced in Malta. Thus, the Maltese court retains the right to refuse the enforcement of the judg- A judgment creditor of a foreign judgment may proceed with ment if it deems that such enforcement would not be “just and filing a precautionary warrant even before the commencement of convenient”. enforcement proceedings, provided that the relevant provisions Registration of such judgments pursuant to this regime is of the COCP are satisfied. The application must be confirmed optional, since, in most cases, the judgment will also be enforce- on oath by the applicant and must contain a description of the able pursuant to the Brussels I Recast Regulation. origin and nature of the debt or claim sought to be secured. Precautionary warrants must be followed by an action for enforcement of the foreign judgment within 20 days. Such 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference precautionary warrants/acts include the following: between recognition and enforcement? If so, what is the i. the warrant of description; difference between the legal effect of recognition and ii. the warrant of seizure; enforcement? iii. the warrant of seizure of a commercial going concern; iv. the garnishee order; The British Judgments (Reciprocal Enforcement) Act requires v. the warrant of impediment of departure; registration of judgments before enforcement can be proceeded vi. the warrant of arrest of aircraft; and with. vii. the warrant of prohibitory injunction. Once a decision to enforce the foreign judgment is obtained, executive acts may be resorted to, which include the following: 3.3 With reference to each of the specific regimes set i. the warrant of seizure of movable property; out in question 1.1, briefly explain the procedure for ii. the warrant of seizure of immovable property; recognising and enforcing a foreign judgment. iii. the warrant of seizure of a commercial going concern; iv. judicial sale by auction of movable or immovable property An application for registration must be tabled before the Court or of rights annexed to immovable property; of Appeal within 12 months from the date of the judgment. v. executive garnishee order; The Court of Appeal has the discretion to extend such time vi. the warrant of arrest of sea vessels; period. In practice, the applicant must present an authenti- vii. the warrant of arrest of aircraft; and cated copy of the relevant foreign judgment, with a declaration viii. the warrant in procintu.

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Moreover, a judgment declaring a foreign judgment enforce- 5.2 Are there any particular tips you would give, or able in Malta, once registered in the Public Registry Office, critical issues that you would flag, to clients seeking creates a hypothec in relation to the debt judicially acknowl- to recognise and enforce a foreign judgment in your edged by the foreign judgment, from the day of registration. jurisdiction? Such hypothec effectively constitutes a security on the entirety of the assets in Malta (present and future) of the judgment debtor Pending determination of an application of an enforcement of a and would also provide preferential ranking in any winding-up foreign judgment, it would be advisable to seek interim relief or proceedings of the judgment debtor. security by virtue of a precautionary act. 52 Other Matters

5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description.

There have not been any noteworthy developments on the recognition and enforcement of foreign judgments in the last 12 months.

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Dr. Karl Briffa joined the firm as an Associate in 2008 and was admitted to partnership in January 2018. Karl is a partner within the firm’s Civil and Commercial practice. He represents both local and international clients in various commercial, corporate, and civil law disputes before the local courts and/or arbitration tribunals, including disputes involving property and conveyancing, construction and development, aviation, land transport, insolvency, shareholder relations, fiduciary obligations of company officials, bodily injuries, energy, insurance cover, competition, gaming, and others. He has extensive experience in employment and labour law-related matters, mainly advising large employers on several contractual issues, employment policies, union recognition and collective bargaining, transfer of business and collective redundan- cies, and he also represents clients in industrial disputes and claims for unfair dismissals before the competent fora. He has also garnered considerable knowledge and experience on development planning matters, representing developers before the competent fora on various planning-related disputes.

GVZH Advocates Tel: +356 2122 8888 192 Old Bakery Street Email: [email protected] Valletta, VLT 1455 URL: www.gvzh.mt Malta

Dr. Ariana Falzon was awarded her licence to practise as an Advocate before the Courts of Malta in 2013. She completed the law course at the University of Malta in 2012, after duly submitting her thesis, for which she carried out an extensive study in the sphere of international criminal law, entitled “The Principle of Complementarity under International Criminal Law”. Ariana joined GVZH Advocates as an Associate in 2017 within the firm’s Civil and Commercial practice. She represents both local and international clients in various commercial, corporate and civil law disputes before the local courts and/or arbitration tribunals, including disputes involving property, construction and development, competition, gaming and others. Ariana has an extensive background in administrative law and assists a number of local authorities when appearing before the Maltese courts.

GVZH Advocates Tel: +356 2122 8888 192 Old Bakery Street Email: [email protected] Valletta, VLT 1455 URL: www.gvzh.mt Malta

Dr. Nicole Sciberras Debono joined GVZH Advocates in 2019. Her main areas of focus are iGaming, TMT, intellectual property and competition law. Nicole also assists in various litigation and arbitration matters. Prior to joining GVZH, Nicole was an intern in other Maltese law firms and assisted in various commercial litigation matters, as well as blockchain advisory. Nicole graduated from the University of Malta with a Bachelor of Laws with Honours in 2018, and a Master in Advocacy in 2019. Having an interest in intellectual property, Nicole completed an undergraduate dissertation entitled “Responsibilities of Intermediary Service Providers for Copyright Infringements by Users of their Service”. During her time at university, she formed part of one of the largest European Law student organisations, ELSA, and was the Director for Social Policy and Legal Publications with the ELSA Malta national board for the term 2016/2017.

GVZH Advocates Tel: +356 2122 8888 192 Old Bakery Street Email: [email protected] Valletta, VLT 1455 URL: www.gvzh.mt Malta

GVZH Advocates is a modern and sophisticated legal practice based in Valletta, Malta, comprising over 30 professionals, firmly rooted in decades of experience in the Maltese legal landscape. Built on the values of acumen, integrity and clarity, the firm is dedicated to providing the highest levels of customer satisfaction, making sure that legal solutions are not only soundly rooted and rigorously tested, but also meticulously implemented. The firm understands that today’s business environment requires legal advisers who have both skills and expertise geared towards addressing effectively specific and technical issues in the context of complex projects, transactions, and disputes. www.gvzh.mt

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Myanmar Myanmar

Allen & Gledhill (Myanmar) Co., Ltd. Minn Naing Oo

12 Country Finder (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; or 1.1 Please set out the various regimes applicable to (f) where it sustains a claim founded on a breach of any law in recognising and enforcing judgments in your jurisdiction force in the Union of Myanmar. and the names of the countries to which such special regimes apply. Section 14 of the CPC provides that the court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was Applicable Law/ Relevant Corresponding pronounced by a court of competent jurisdiction, unless the Statutory Regime Jurisdiction(s) Section Below contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. Signatories to Arbitration Act Section 4(b), 31(a), The form of plaint for a foreign judgment (Form No. 11 of the New York 2016. 45, 46. Appendix A to the First Schedule of the CPC) requires the plain- Convention. tiff to set out a specific amount due from the defendant. This suggests that the Myanmar courts would only enforce monetary 22 General Regime judgments, at least from a procedural perspective, and that judgments in rem, such as relating to injunctions, including foreign 2.1 Absent any applicable special regime, what is the asset freezing orders and specific performance, would not be legal framework under which a foreign judgment would enforced. In particular, section 16 of the CPC provides that all be recognised and enforced in your jurisdiction? cases involving immovable property in Myanmar must be instituted domestically in Myanmar. A person seeking to enforce a foreign judgment in Myanmar must file a suit in Myanmar, as plaintiff, against the judgment 2.3 What requirements (in form and substance) must debtor, as defendant. There is no specific procedure for a suit a foreign judgment satisfy in order to be recognised and brought on a foreign judgment and the suit would, as with all enforceable in your jurisdiction? other suits, be initiated by presenting a plaint, which would typically refer to the amount awarded in the foreign judgment as a Please see the answer to question 2.2. debt owed by the defendant to the plaintiff. Once a decree enforcing the foreign judgment has been obtained from the Myanmar courts, it may be executed by 2.4 What (if any) connection to the jurisdiction is attachment and sale of any property, by arrest and detention in required for your courts to accept jurisdiction for prison, garnishee order and application for examination of judg- recognition and enforcement of a foreign judgment? ment debtors. In general, every court in Myanmar (excluding the Supreme Court of the Union, which is the apex court) has jurisdiction in 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? granting enforcement of a foreign judgment, subject to certain pecuniary limits of its jurisdiction. The pecuniary limits of the Myanmar courts are as follows: Township Courts up to MMK Section 13 of the Civil Procedure Code (1908) (“CPC”) provides 10 million; District Courts up to MMK 3,000 million; and no that a foreign judgment shall be conclusive as to any matter limits apply to the High Courts. thereby directly adjudicated upon between the same parties, or In addition to such pecuniary limits, the Myanmar courts between parties under whom they or any of them claim, liti- must have jurisdiction over the defendant, or the cause of action gating under the same title, except: as required by section 20 of the CPC. This requires that (a) (a) where it has not been pronounced by a court of competent the judgment debtor (against whom the judgment is to been jurisdiction; enforced) must, at the time of commencement of the suit, be (b) where it has not been given on the merits of the case; resident, or must have carried on business or personally worked (c) where it appears on the fact of the proceedings to be for gain in Myanmar, (b) the judgment debtor, who does not founded on an incorrect view of international law or a reside or carry on business or personally work for gain in refusal to recognise the law of the Union of Myanmar in Myanmar, submits to the jurisdiction of the Myanmar courts, or cases in which such law is applicable;

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(c) the foreign judgment must be obtained based on a cause of The application of section 11 of the CPC is in respect of action that arose wholly or partly in Myanmar. domestic judgments. Nevertheless, in view of section 11 of the CPC (read with section 13 of the CPC), the Myanmar court is: (a) unlikely to enforce the foreign judgment, if it was decided later 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal in time to the conflicting local judgment; and (b) likely to accord effects of recognition and enforcement respectively? primacy to a prior foreign judgment between the parties which may be recognised under Myanmar law. 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 2.6 Briefly explain the procedure for recognising and conflicting local law or prior judgment on the same or a enforcing a foreign judgment in your jurisdiction. similar issue, but between different parties?

The judgment creditor must commence a civil action by filing There have not been many instances of foreign judgments being a plaint in the appropriate Myanmar court, as plaintiff, against enforced in Myanmar in recent history and there are no known the judgment debtor, as defendant. When a plaint has been cases relevant to this particular issue. filed, a summons is served upon the defendant requesting the Explanation VI to section 11 of the CPC explains that where defendant to appear and answer the claim. The defendant has to persons litigate bona fide in respect of a public right or of a private submit a written statement answering the specific claims made right claimed in common for themselves and others, all persons in the plaint. interested in such right shall, for the purposes of this section, be If the court is satisfied that no further argument or evidence deemed to claim under the persons so litigating. than the parties can at once adduce is required, as may be suffi- Unless Explanation VI applies to the different parties, section cient for the decision of the suit, and that no injustice will result 11 would not apply to stop the court from enforcing the foreign from proceeding with the suit, the court may make a determi- judgment. nation at the “first 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 be There have not been many instances of foreign judgments being made? enforced in Myanmar in recent history and there are 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 set out in section 11 of the CPC, there is no bar to enforcing the the judgment debtor in response to the plaint. judgment in Myanmar.

2.8 What, if any, is the relevant legal framework 2.12 Are there any differences in the rules and applicable to recognising and enforcing foreign procedure of recognition and enforcement between judgments relating to specific subject matters? 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 within Myanmar. 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a 2.13 What is the relevant limitation period to recognise conflicting local judgment between the parties relating and enforce a foreign judgment? to the same issue; or (b) local proceedings pending between the parties? A suit must be filed within six years from the date of the foreign judgment in accordance with Article 117 of the First Schedule of There have not been many instances of foreign judgments being the Limitation Act 1908. enforced in Myanmar in recent history and there are no known cases relevant to the two scenarios. Section 11 of the CPC provides that a Myanmar court shall 32 Special Enforcement Regimes Applicable not try any suit or issue in which the matter directly or substan- to Judgments from Certain Countries tially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under 3.1 With reference to each of the specific regimes whom they or any of them claim, litigating under the same title, set out in question 1.1, what requirements (in form in a court competent to try such subsequent suit or the suit in and substance) must the judgment satisfy in order to which such issue has been subsequently raised, and has been be recognised and enforceable under the respective heard and finally decided by such court. Explanation I of the regime? aforementioned section explains that the expression “former suit” shall denote a suit which has been decided prior to the suit The arbitral award has to be made outside Myanmar but inside in question whether or not it was instituted prior thereto. the territory of member countries of the New York Convention according to the arbitration agreement.

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Section 46(b) of the Arbitration Law provides that the court 3.3 With reference to each of the specific regimes set may refuse to recognise and enforce a foreign award, if any of out in question 1.1, briefly explain the procedure for the following in submission for recognition and enforcement of recognising and enforcing a foreign judgment. the foreign award can be proved by the respondent: (1) a party to the arbitration agreement was, under the law Similarly to question 2.6 above, the judgment creditor would applicable to them, under some incapacity; have to commence proceedings by filing a plaint in the appro- (2) the arbitration agreement is not valid under the law to priate Myanmar court. The plaint should comply with the which the parties have subjected it, or in the absence of requirements under section 45 of the Arbitration Law, as set out any indication in that respect, under the law of the country in question 3.1 above. where the award was made; (3) the party was not given proper notice of the appointment of the arbitrator, or the arbitration proceedings were 3.4 With reference to each of the specific regimes set not carried out properly or the respondent was otherwise out in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the unable to present its case in the arbitration proceedings; special regime? When can such a challenge be made? (4) the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration or it contains a decision on the matter beyond the scope of Please refer to question 3.1. If enforcement is resisted on these the submission to arbitration; grounds, they should be set out in the written statement filed by (5) the composition of the arbitral tribunal or the arbitral the judgment debtor in response to the plaint. procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accord- 42 Enforcement ance with the law of the country where the arbitration took place; or 4.1 Once a foreign judgment is recognised and (6) the award has not yet become binding on the parties or enforced, what are the general methods of enforcement has been set aside or suspended by a competent authority available to a judgment creditor? of the country in which, or under the law of which, that award was made. The usual methods of enforcement applicable to a judgment Section 46(c) further provides that the court may refuse to issued by the Myanmar court will apply: enforce the award if it finds that: (a) attachment and sale of any property; (1) the subject matter of the dispute is not capable of settle- (b) examination of the judgment debtor on his property; ment by arbitration under the law of the State; or (c) application for garnishee orders requiring third parties, (2) the enforcement of the award would be contrary to the such as banks, who are indebted to the judgment debtor to public policy of the State. pay the judgment creditor the amount of any debt due or Section 46(d) provides that where the court is satisfied that accruing due to the judgment creditor in satisfaction of the an application for the setting aside or for the suspension of the judgment; award has been made to a competent authority referred to in (d) arrest and detention in prison; and subsection (b) of section 46, the court may, if it considers proper (e) commencement of insolvency (against individuals) or to do so, postpone the order to enforce the award and may also winding-up (against companies) proceedings, where order the respondent to provide appropriate security on the applicable. application of the party claiming enforcement of the award. Section 45 of the Arbitration Law provides that the party 52 Other Matters seeking to 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 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction was made; relevant to the recognition and enforcement of foreign (2) the original arbitration agreement or an authorised copy judgments? Please provide a brief description. thereof; and (3) such evidence as may be necessary to prove that the award is a foreign award. No, there have not been any recent legal developments to the Further, where the award or arbitration agreement requiring recognition and enforcement of foreign judgments in Myanmar. to be produced is in a foreign language, the party seeking to enforce the award shall produce a translation into English certi- 5.2 Are there any particular tips you would give, or fied as correct by a diplomatic or consular agent of the country critical issues that you would flag, to clients seeking to which that party belongs or certified as correct in such other to recognise and enforce a foreign judgment in your manner as may be sufficient according to the law in force in the jurisdiction? Union of Myanmar. It would appear that foreign arbitral awards (from member coun- 3.2 With reference to each of the specific regimes set tries of the New York Convention) may be enforced more easily out in question 1.1, does the regime specify a difference than foreign judgments. Therefore, in dealing with parties who between recognition and enforcement? If so, what is the are resident in Myanmar or have assets in Myanmar, parties difference between the legal effect of recognition and should consider agreeing to arbitration in a member country of enforcement? the New York Convention.

No, there is no specified difference between recognition and enforcement.

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Minn Naing Oo is the Managing Director of Allen & Gledhill (Myanmar) and a Partner of Allen & Gledhill. He has extensive experience advising on banking and finance, mergers and acquisitions, infrastructure projects, corporate and commercial, arbitration and competition. He has acted for multinational corporations, multilateral agencies, financial institutions, private equity funds and Myanmar conglomerates. He has also advised government agencies and worked on various legislative reforms in Myanmar. He was previously the Chief Executive Officer of the Singapore International Arbitration Centre and Director at the Ministry of Trade and Industry Singapore. He is also a Fellow of the Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators, and has been appointed to dispute panels for disputes between World Trade Organization (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 he obtained an LL.M. in 2001 from Columbia University as a Harlan Fiske Stone Scholar.

Allen & Gledhill (Myanmar) Co., Ltd. Tel: +95 1 925 3719 Junction City Tower, #18-01 Email: [email protected] Bogyoke Aung San Road URL: www.allenandgledhill.com/mm Pabedan Township, Yangon Myanmar

Allen & Gledhill (Myanmar) is the Myanmar office of one of South-east Asia’s leading and largest law firms, Allen & Gledhill. Based in Yangon, it is a fully licensed law firm which provides Myanmar law advice and legal opinions. The Myanmar office, 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 its clients. Allen & Gledhill (Myanmar) is led by Minn Naing Oo, a native of Myanmar. 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. Allen & Gledhill (Myanmar) regularly receives top-tier rankings in leading publications. www.allenandgledhill.com/mm

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Netherlands Netherlands

Jurjen de Korte

Van Oosten Schulz De Korte Geert Wilts

12 Country Finder 22 General Regime

1.1 Please set out the various regimes applicable to 2.1 Absent any applicable special regime, what is the recognising and enforcing judgments in your jurisdiction legal framework under which a foreign judgment would and the names of the countries to which such special be recognised and enforced in your jurisdiction? regimes apply. If no treaty applies, the recognition and enforcement of a foreign Applicable Law/ Relevant Corresponding court judgment in civil and commercial matters is governed by Statutory Regime Jurisdiction(s) Section Below art. 431 of the Dutch Code of Civil Procedure. Direct effect of judgments within the Aruba. 2.2 What constitutes a ‘judgment’ capable of Kingdom of the Curaçao. N/A. recognition and enforcement in your jurisdiction? Netherlands: art. 40 Sint Maarten. Statute. In general: a decision on the merits in a civil or commercial dispute. Belgium (1925). Some treaties provide explicitly that they do not apply to judgments Italy (1959). of certain forums (e.g. administrative bodies) or in certain forms Germany (1962). (e.g. penalties, provisional and protective measures) or on certain Bilateral treaties. Austria (1963). Section 3. subjects (e.g. employment, product liability, consumer protec- United Kingdom tion). Despite such treaty exclusions, recognition and enforcement (1967). may still be possible under the general regime of art. 431 of the Surinam (1976). Dutch Code of Civil Procedure. It is still to be tested whether, absent an applicable treaty, a foreign court judgment imposing an Hague Convention administrative penalty (e.g. penalties imposed by a foreign antitrust on the Recognition Albania. authority) may qualify in the Netherlands as a foreign court judg- and Enforcement of Cyprus. Section 3. ment in a civil or commercial matter, especially since under Dutch Foreign Judgments in Kuwait. law an administrative penalty creates a civil liability (art. 4:124, Civil and Commercial Portugal. Dutch General Administrative Law Act, Awb). Matters (1971). Denmark. 2.3 What requirements (in form and substance) must EU Member States. a foreign judgment satisfy in order to be recognised and Hague Convention Mexico. enforceable in your jurisdiction? on Choice of Court Montenegro. Section 3. Agreements (2005). Singapore. United Kingdom A complete and authenticated copy of the foreign judgment and and Gibraltar. a legal opinion confirming enforceability of the judgment in the country of origin is usually sufficient in terms of evidence. Unless Multiple treaties with an applicable treaty (e.g. the 1961 Hague Convention Abolishing relatively narrow Dependent on the the Requirement of Legalisation for Foreign Public Documents) scope (e.g. child Section 3. treaty. provides otherwise, the court may require those documents to be support, transport by legalised and to be translated into Dutch by a sworn translator. air, by road, by rail). If no treaty applies: Cases where no 2.4 What (if any) connection to the jurisdiction is art. 431 Dutch Code Section 2. treaty applies. required for your courts to accept jurisdiction for of Civil Procedure. recognition and enforcement of a foreign judgment?

None of the parties need to be domiciled or to even have assets in the Netherlands for recognition and enforcement of a foreign

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judgment. Reciprocity (i.e. recognition of judgments of Dutch 2.8 What, if any, is the relevant legal framework courts in the country of origin) is also not a requirement. applicable to recognising and enforcing foreign judgments relating to specific subject matters? 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal Under the regime of art. 431 of the Dutch Code of Civil Procedure effects of recognition and enforcement respectively? (i.e. absent an applicable treaty), there are no additional requirements for specific subject matters. The Netherlands is a member If the foreign judgment concerns the establishment of a certain of a number of treaties on the recognition and enforcement of status (e.g. divorce), it is sufficient to seek recognition of that foreign judgments, some with a relatively broad scope and some status, but it is not necessary to also seek court leave to enforce with a relatively narrow scope (for instance: child support; ship- in the Netherlands. No particular procedural requirements may ping; and transport by road, by air and by rail). Significant apply to cause a foreign judgment establishing a certain status differences may apply depending on the applicable treaty. to be recognised in the Netherlands. If the foreign judgment concerns an order to perform a certain act (e.g. make a payment, 2.9 What is your court’s approach to recognition and transfer title), one should not only seek recognition of the enforcement of a foreign judgment when there is: (a) a foreign judgment but also seek from the Dutch courts leave to conflicting local judgment between the parties relating enforce. Such court leave is required for a Dutch bailiff to take to the same issue; or (b) local proceedings pending enforcement action, such as involuntary sale of assets. between the parties?

2.6 Briefly explain the procedure for recognising and A conflicting local judgment between the parties relating to the enforcing a foreign judgment in your jurisdiction. same issue is a ground for refusal (see under question 2.7 (iv)). Local proceedings pending between the same parties may be a ground to suspend the proceedings pending the outcome of the Even though the procedure of art. 431 of the Dutch Code local proceedings. of Civil Procedure (i.e. absent an applicable treaty) does not formally entail recognition or enforcement of a foreign state court judgment, it does in effect result in giving binding effect 2.10 What is your court’s approach to recognition and in the Netherlands to a foreign court judgment. If no treaty enforcement of a foreign judgment when there is a applies, then art. 431 of the Dutch Code of Civil Procedure conflicting local law or prior judgment on the same or a similar issue, but between different parties? can be used to initiate (new) simplified proceedings in the Netherlands, seeking the same outcome as the foreign court judgment without review of the merits of the foreign judgment. Recognition and enforcement of a foreign judgment may be Depending on the subject matter and amount of the claim, the refused if such recognition and enforcement would violate proceedings are initiated either at the kanton division or the divi- Dutch public order (for example, U.S. treble damages). sion for regular commercial matters of the District Court in Certainly, not every conflict with Dutch laws and regulations the first instance. The proceedings are initiated by summons or with an earlier judgment between other parties amounts to a (dagvaardingsprocedure) and are inter partes, the outcome of which is potential violation of Dutch public order. If the foreign judg- subject to appeal and cassation. ment does not fit nicely into the Dutch public order (e.g. types of security rights that are foreign to the Dutch legal system), the Dutch court will seek to assimilate the foreign judgment into 2.7 On what grounds can recognition/enforcement of a the Dutch legal system as much as possible. As regards cases judgment be challenged? When can such a challenge be made? where a foreign judgment conflicts with a prior Dutch judgment between different parties on the same or a similar issue, it should also be noted that, although the courts do seek to be consistent, Recognition and enforcement may be refused if: (i) the foreign there is no system of binding precedent in the Netherlands. judgment is not based on an internationally recognised ground for jurisdiction; (ii) principles of due process were violated in the proceedings that resulted in the foreign judgment; (iii) recog- 2.11 What is your court’s approach to recognition and nition and enforcement would violate Dutch public order; (iv) enforcement of a foreign judgment that purports to apply the law of your country? the foreign judgment is incompatible with a Dutch judgment between the same parties; (v) the foreign judgment is incompatible with an earlier foreign judgment between the same parties A Dutch court will not, in principle, review the merits of the that is recognisable in the Netherlands; (vi) the foreign judg- foreign judgment, and that is no different if the foreign court ment is by its terms not, no longer or not yet enforceable; or (vii) has applied Dutch substantive law. However, recognition and the foreign judgment has already been satisfied. It is up to the enforcement of a foreign judgment may be refused if such recog- judgment creditor to establish that the foreign judgment is by nition and enforcement would violate Dutch public order. its terms enforceable in the country of origin (under (vi)), while other grounds for refusal may be raised by the Dutch courts ex 2.12 Are there any differences in the rules and officio (e.g. violation of Dutch public order) or have to be asserted procedure of recognition and enforcement between and evidenced by the judgment debtor. The judgment debtor the various states/regions/provinces in your country? must be given an opportunity to be heard before the request for Please explain. recognition and enforcement is decided upon. No, there are not.

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2.13 What is the relevant limitation period to recognise may also (have to) be followed for a treaty-based request to recog- and enforce a foreign judgment? nise a foreign judgment. Some of the treaties referred to do not apply to recognition of foreign judgments as to a certain status. In the 2014 Gaz prombank decision, the Dutch Supreme Court held that expiration of a leave to enforce in and under the laws 3.3 With reference to each of the specific regimes set of the country of origin is no cause to refuse recognition and out in question 1.1, briefly explain the procedure for enforcement in the Netherlands of that foreign judgment. In recognising and enforcing a foreign judgment. other words, the foreign statute of limitations is of no conse- quence for the recognition and enforcement of a foreign judg- The request should be filed at the District Court. The proceed- ment in the Netherlands. This decision has raised the question ings are inter partes. The decision of the District Court is subject to of whether the Dutch statute of limitations or no statute of limi- appeal (within one month, unless an exception applies). The deci- tations at all applies to recognition and enforcement of a foreign sion of the Court of Appeal is subject to cassation appeal at the state court judgment in the Netherlands. In any event, the limi- Supreme Court (within one month, unless an exception applies). tation period of a Dutch court leave to enforce (including a Unless the court decides otherwise, a leave to enforce is not court leave to enforce a foreign court judgment) is 20 years. suspended by the mere lodging of an appeal or cassation appeal.

32 Special Enforcement Regimes Applicable 3.4 With reference to each of the specific regimes set to Judgments from Certain Countries out 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? 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to Although the grounds for refusal are formulated differently in the be recognised and enforceable under the respective various treaties, they typically include some form of the following regime? grounds for refusal: (i) the foreign judgment is not based on an internationally recognised ground for jurisdiction; (ii) the princi- The answers in this section do not necessarily apply under EU ples of due process were violated in the proceedings that resulted Regulations and the Lugano Treaty. in the foreign judgment; (iii) recognition and enforcement would The procedural rules applicable to seek recognition of and violate Dutch public order; (iv) the foreign judgment is incom- leave to enforce a foreign judgment in the Netherlands on the patible with a Dutch judgment between the same parties; (v) the basis of a treaty are set out in arts 985–990 of the Dutch Code foreign judgment is incompatible with an earlier foreign judgment of Civil Procedure. between the same parties that is recognisable in the Netherlands; The request should be accompanied by a complete and authen- (vi) the foreign judgment is by the terms of that judgment not, ticated copy of the foreign judgment and evidence of formal no longer, or not yet enforceable; or (vii) the foreign judgment enforceability in the country of origin. Unless an applicable treaty has already been satisfied. Some treaties define additional cate- (e.g. the 1961 Hague Convention Abolishing the Requirement of gories for refusal, such as invalidity of or lack of capacity to enter Legalisation for Foreign Public Documents) provides otherwise, into the agreement giving rise to the foreign judgment, or fraud the court may require those documents to be legalised and to be in the foreign court proceedings. Under most treaties, it is up to translated into Dutch by a sworn translator. Some of the trea- the judgment creditor to establish that the foreign judgment is by ties that the Netherlands is party to also require that the foreign its terms enforceable in the country of origin (under (vi)) while judgment cannot or can no longer be appealed in the country of other grounds for refusal may be raised by the Dutch courts ex origin, and evidence of the same. Some treaties require, for the officio (e.g. violation of Dutch public order) or have to be asserted recognition and enforcement of a foreign default judgment, that and evidenced by the judgment debtor. The Dutch courts will not the party seeking recognition and enforcement thereof evidences review the merits of the foreign judgment. proper notification of the initiation of the foreign proceedings to the defendant. In addition, the party seeking recognition and 42 Enforcement enforcement in the Netherlands must evidence that the counterparty was properly notified of the request to recognise and 4.1 Once a foreign judgment is recognised and enforce the foreign judgment. enforced, what are the general methods of enforcement Some points to note with respect to the Hague Convention available to a judgment creditor? on Choice of Court Agreements (2005) are that it only applies in case of an exclusive choice of court of a Member State, if All physical actions pursuant to a leave to enforce (other than that agreement was concluded after the convention entered into imprisonment) can only be initiated by a bailiff (deurwaarder). force and if the proceedings were instituted after the convention The bailiff may enlist the assistance of the police. The avail- entered into force. able actions include collection of receivables (e.g. trade receivables, bank balances, insurance proceeds) and involuntary sale 3.2 With reference to each of the specific regimes set of stock, inventory and other movables, real estate and shares. out in question 1.1, does the regime specify a difference Certain assets may be immune from enforcement (e.g. certain between recognition and enforcement? If so, what is the foreign state-owned assets) or subject to a special regime (e.g. difference between the legal effect of recognition and aircraft) and certain enforcement actions may amount to an enforcement? abuse of right (e.g. satisfaction of the claim can also be achieved in a way that is substantially less burdensome for the debtor). Even though arts 985–990 of the Dutch Code of Civil Procedure Judgments other than payment orders may be strengthened formally only apply to treaty-based requests for enforcement of with a monetary penalty (dwangsom). In extreme circumstances, a foreign judgment, some authorities hold that these provisions a person may be imprisoned as long as the judgment is not satisfied (lijfsdwang).

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52 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 jurisdiction? last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. It is possible to attach assets (as security for satisfaction of a claim) in the Netherlands even before the proceedings on the merits have been initiated, and even if the proceedings on the The Convention on the Recognition and Enforcement of merits have to be initiated abroad (provided there is a treaty Foreign Judgments in Civil or Commercial Matters, adopted in in force between the Netherlands and that foreign country on The Hague, the Netherlands, was signed by Uruguay in 2019 and enforcement of judgments). In most instances, court leave to by Ukraine in 2020. This treaty has not yet entered into force. effect such attachment can be obtained ex parte, within a matter The Hague Convention on Choice of Court Agreements of hours, without the need to post a bond and on the basis of (2005) entered into force between the Netherlands, the United a prima facie showing of a claim. None of the parties need to Kingdom and Gibraltar after the United Kingdom ceased to be domiciled in the Netherlands. The attachment of assets in be a member of the EU on 1 January 2021. This treaty has a the Netherlands can in certain situations even be used to create limited scope. For instance, it only applies in case of an exclu- jurisdiction of the Dutch state courts to hear the case on the sive choice of court of a Member State, if that agreement was merits (i.e. if proceedings would otherwise need to be initiated concluded after the Convention entered into force and if the in a foreign country with which the Netherlands has not entered proceedings were instituted after the Convention entered into into a treaty on the enforcement of judgments). force. The United Kingdom has also excluded certain insurance matters from its scope. If the 2005 treaty does not apply, the 1967 bilateral treaty between the Netherlands and the United Kingdom may, in certain cases, provide a basis for recognition and enforcement across the Channel. However, in all cross- Channel matters, Brexit has reintroduced the requirement to obtain leave to enforce in the country of enforcement.

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Jurjen de Korte joined Van Oosten Schulz De Korte Advocaten in 2017. Previously, Jurjen worked at the Amsterdam office of Stibbe, the Abu Dhabi office of Herbert Smith and at Eversheds Sutherland in Amsterdam. Jurjen graduated in Dutch law from Utrecht University (1998) and completed a Master of Laws degree at New York University (1999). He was admitted to the Dutch Bar in 1999, the New York State Bar in 2001 and has rights of audience at the DIFC Courts (2010). Jurjen has extensive experience in cross-border litigation and arbitration with a particular focus on international commercial arbitration. Jurjen has handled disputes in a wide range of sectors, including construction, automotive, oil and gas, M&A and banking and finance. He frequently publishes and lectures in the field of international arbitration and private international law.

Van Oosten Schulz De Korte Tel: +31 20 6060 680 Vondelstraat 41 Email: [email protected] 1054 GJ Amsterdam URL: www.vosdk.nl Netherlands

Geert Wilts joined Van Oosten Schulz De Korte Advocaten in April 2018, focusing on international commercial litigation and arbitration. He previously worked at Eversheds Sutherland in Amsterdam. Geert studied at the University of Groningen. He holds a Master’s degree in Dutch law, with specialisations in Private Law and Company Law, as well as a Master’s degree in notarial law.

Van Oosten Schulz De Korte Tel: +31 20 6060 680 Vondelstraat 41 Email: [email protected] 1054 GJ Amsterdam URL: www.vosdk.nl Netherlands

Van Oosten Schulz De Korte focuses on corporate and commercial advice, litigation and arbitration and transactional work. The founders of our firm have a wealth of (international) experience in dispute settlement and sanctions law, business and corporate law, commercial contracts and transactional work. Our commercial litigation practice focuses on proceedings in state courts to resolve national and international complex commercial disputes. This encompasses disputes arising out of contracts in a wide variety of sectors, such as construction, oil and gas, energy, distribution, transport, telecom, pharmaceuticals, financing and insurance. Many of these proceedings concern compensation of damages caused by breach of contract or tort or concern the conclusion, specific performance, rescis- sion or nullification of contracts. Proceedings on the merits are frequently preceded by urgent relief proceedings (kort geding) and ex parte freezing orders (conservatoir beslag). www.vosdk.nl

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Dr. Barbara Jelonek-Jarco

Kubas Kos Gałkowski Agnieszka Trzaska-Śmieszek

12 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.

Corresponding Applicable Law/Statutory Regime Relevant Jurisdiction(s) Section Below Art. 1145 – Art. 115325 of the Act of 17 November 1964 – The Code of Non-EU countries (separate regime for Section 2. Civil Procedure (hereinafter: “CCP”). EU Member States – see chapter 2). States which have ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Convention. The updated list is available Awards (drafted in New York on 10 June 1958) (hereinafter: the “NY Section 3. at: http://www.newyorkconvention.org/ Convention”). list+of+contracting+states. The New Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Lugano on 30 October 2007. Legal dealings under the new Lugano Convention take place: Norway, Iceland and Switzerland. Section 3. ■ as of 1 January 2010, between Poland and Norway; ■ as of 1 January 2011, between Poland and Switzerland; and ■ as of 1 May 2011, between Poland and Iceland. States which have ratified the Convention. European Convention on Recognition and Enforcement of Decisions The updated list is available at: https:// concerning Custody of Children and on Restoration of Custody of www.coe.int/en/web/conventions/ Section 3. Children of 20 May 1980. full-list/-/conventions/treaty/105/ signatures?p_auth=dTulWoYI. States which have ratified the Convention. IMO – Poland. International Convention on Civil Liability for The updated list is available at: imo. Bunker Oil Pollution Damage, adopted by the International Maritime Section 3. org/en/About/Conventions/StatusOf Organisation in London on 23 March 2001. Conventions/Pages/Default.aspx. States which have ratified the Convention. Convention of 2 October 1973 on the Recognition and Enforcement of The updated list is available at: https:// Section 3. Decisions Relating to Maintenance Obligations. www.hcch.net/en/instruments/ conventions/status-table/?cid=85. States which have ratified the Convention. Convention of 23 November 2007 on the International Recovery of The updated list is available at: https:// Section 3. Child Support and Other Forms of Family Maintenance. www.hcch.net/en/instruments/ conventions/status-table/?cid=131. States which have ratified the Convention. Convention of 19 October 1996 on Jurisdiction, Applicable Law, The updated list is available at: https:// Recognition, Enforcement and Co-operation in Respect of Parental Section 3. www.hcch.net/en/instruments/ Responsibility and Measures for the Protection of Children. conventions/status-table/?cid=70. States which have ratified the Convention. Convention of 1 June 1970 on the Recognition of Divorces and Legal The updated list is available at: https:// Section 3. Separations. www.hcch.net/en/instruments/ conventions/status-table/?cid=80.

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It is also applicable in relations with Australia, Bahamas, Canada, the Convention on proceedings in civil and commercial matters, drafted in Dominican Republic, Fiji, Kenya, Section 3. Warsaw on 26 August 1931. Lesotho, Malta, New Zealand, Tanzania, Tonga and Swaziland. Morocco-Poland. Agreement of 21 May 1979 on judicial assistance in Morocco and Poland. Section 3. civil and criminal matters. Ukraine-Poland. Agreement of 24 May 1993 on judicial assistance and Ukraine and Poland. Section 3. legal relations in civil and criminal matters. Vietnam-Poland. Agreement of 22 March 1993 on Mutual Legal Vietnam and Poland. Section 3. Assistance in Civil, Family and Criminal Matters. Turkey-Poland. Agreement of 12 April 1988 on judicial assistance in Turkey and Poland. Section 3. civil and commercial matters. States which have ratified the Convention. The updated list is available Cuba-Poland. Agreement of 18 November 1982 on judicial assistance at: https://www.coe.int/en/web/conven- Section 3. in civil matters, family matters and criminal matters, signed in Havana. tions/full-list/-/conventions/treaty/105/ signatures?p_auth=98j1MJag. Syria-Poland. Agreement of 16 February 1985 on judicial assistance in Syria and Poland. Section 3. civil and criminal matters. Belarus-Poland. Agreement of 26 October 1994 on judicial assistance and legal relations in civil matters, family matters, employees’ matters Belarus and Poland. Section 3. and criminal matters. Serbia-Poland. Agreement between the Federal People’s Republic of Yugoslavia and the People’s Republic of Poland on Legal Assistance in Serbia and Poland. Section 3. Civil and Criminal Matters, signed in Warsaw on 2 February 1960. Slovenia-Poland. Agreement between the Federal People’s Republic of Yugoslavia and the People’s Republic of Poland on Legal Assistance in Slovenia and Poland. Section 3. Civil and Criminal Matters, signed in Warsaw on 2 February 1960. Montenegro-Poland. Agreement between the Federal People’s Republic of Yugoslavia and the People’s Republic of Poland on Legal Assistance in Civil and Criminal Matters, signed in Warsaw on 2 Montenegro and Poland. Section 3. February 1960. Agreement of 23 April 2009 between Poland and Montenegro regulating bilateral treaty relations. Macedonia-Poland. Agreement between the Federal People’s Republic of Yugoslavia and the People’s Republic of Poland on Legal Assistance in Civil and Criminal Matters, signed in Warsaw on 2 February Macedonia and Poland. Section 3. 1960. Agreement of 9 May 2007 between Poland and the Republic of Macedonia regulating bilateral treaty relations. Bosnia and Herzegovina-Poland. Agreement of 2 February 1960 between the Federal People’s Republic of Yugoslavia and the People’s Republic of Poland on Legal Assistance in Civil and Criminal Matters, signed in Warsaw on 2 February 1960. Agreement of 22 December Bosnia and Herzegovina and Poland. Section 3. 2006 between the Government of the Republic of Poland and the Council of Ministers of Bosnia and Herzegovina on legal succession of Bosnia and Herzegovina in respect of treaties concluded between the Republic of Poland and the Socialist Federal Republic of Yugoslavia. Tunisia-Poland. Agreement of 22 March 1985 on judicial assistance in Tunisia and Poland. Section 3. civil and criminal matters. Iraq-Poland. Agreement of 29 October 1988 on judicial assistance in Iraq and Poland. Section 3. civil and criminal matters. Algeria-Poland. Agreement of 9 November 1976 on judicial assistance Algeria and Poland. Section 3. in civil and criminal matters. DPRK-Poland. Agreement of 28 September 1986 on judicial assistance North Korea and Poland. Section 3. in civil matters, family matters and criminal matters. Cuba-Poland. Agreement of 18 November 1982 on judicial assistance Cuba and Poland. Section 3. in civil matters, family matters and criminal matters. Libya-Poland. Agreement of 2 December 1985 on judicial assistance in Libya and Poland. Section 3. civil matters, commercial matters, family matters and criminal matters.

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China-Poland. Agreement of 5 June 1987 on judicial assistance in civil China and Poland. Section 3. and criminal matters. Russia-Poland. Agreement of 16 September 1996 on judicial assistance Russia and Poland. Section 3. and legal relationships in civil and criminal matters.

22 General Regime 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? 2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? There is no general rule in this respect. However, the law regulates the jurisdiction of the court to decide whether or not a In the absence of any special regime, the foreign judgment judgment is subject to recognition, and to decide on an appli- would be recognised and enforced under the provisions of Book cation for a declaration of enforceability of a foreign judgment. III of Part VI of the CCP. In cases concerning recognition, a regional court which i) Since 2008, the substantive and formal conditions for would be territorially competent to hear a case settled by a judg- respecting the effectiveness or enforceability of foreign judgments ment of a court of a foreign State, or ii) whose district has a terri- and court settlements in Poland have been significantly liberal- torially competent district court, or iii) in the absence of such ised. The new provisions were modelled on the solutions adopted basis, the Regional Court in Warsaw – would be competent. in Regulation No. 44/2001 and Regulation No. 2201/2003 (see Therefore, the first step is to determine the competent court on question 2.6 below). the basis of the provisions of the CCP regulating the territorial jurisdiction of the court. The district court of the debtor’s domicile or registered office, 2.2 What constitutes a ‘judgment’ capable of or the court in whose jurisdiction enforcement is to be carried recognition and enforcement in your jurisdiction? out, shall decide on the enforcement clause.

As a rule, foreign judgments in civil matters may be recognised 2.5 Is there a difference between recognition and 1 4 or enforced. Moreover, Art. 1149 and Art. 1151 of the CCP enforcement of judgments? If so, what are the legal allow for the recognition and enforcement of judgments issued effects of recognition and enforcement respectively? by other authorities of foreign countries (including administrative authorities), provided that they issue judgments on disputed Yes, Polish law distinguishes between the recognition and civil cases and, in accordance with the law of a given country, enforcement of a foreign judgment. are appointed to resolve such cases in specific proceedings. The recognition refers to the enforceability of a judgment; Settlements in civil cases concluded before courts and other enforceability of a judgment means the totality of its effects. authorities of foreign countries or approved by them are also The recognition therefore consists of respecting the effects enforceable if they are enforceable in the country of origin and which the foreign judgment has had in the State of origin and are not contrary to the basic principles of the legal order of the in “transmitting” those effects to the territory of the State of Republic of Poland. recognition. Such effects include, in particular, the degree of res judicata and the binding force of the judgment. Thanks to 2.3 What requirements (in form and substance) must the institution of the recognition of a foreign judgment, a given a foreign judgment satisfy in order to be recognised and entity may count on legal protection from the Polish authorities. enforceable in your jurisdiction? It also has the possibility to further pursue its claims in cases where the recognition of the judgment was a preliminary issue. Firstly, a foreign judgment should be issued in a civil case. The The concept of enforcement should be combined with a CCP rules are not appropriate to determine the effectiveness of declaration of enforceability, and thus with giving the judgment judgments and decisions in criminal and administrative matters. only the execution power. In addition, a judgment or decision of another competent It should be noted that the recognition applies to any foreign authority of a foreign State in civil matters should be final and judgment given in civil matters. It is irrelevant whether the legally binding in the State where it was issued. foreign judgment will be enforced in the Republic of Poland. At present, the legislator no longer requires that a given civil However, the declaration of enforceability is related only to those case decided by a foreign ruling should belong to court proceed- foreign judgments which are suitable for enforcement by way ings in Poland. of an execution. A person claiming recognition of a foreign judgment or applying for a declaration of enforceability shall be required to 2.6 Briefly explain the procedure for recognising and provide: enforcing a foreign judgment in your jurisdiction. ■ an official copy of the judgment; ■ the document certifying that the judgment is final unless it is evident from the content of the judgment that it is final Since 2008, the CCP has been expressing a system of automatic and binding; recognition of foreign judgments. In such a case, there is no ■ (if the judgment was issued in proceedings in which the need to conduct special proceedings or issue a sovereign act defendant did not enter a dispute as to the substance of by the Polish authority. The judgment, in principle, has legal the case) the document establishing that the pleading insti- effects at the same time as in the country of origin, unless the tuting the proceedings was served on the defendant; and negative conditions for its recognition under Art. 1146 of the ■ translations of the above documents into Polish. CCP are met (see question 2.7 below).

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The system of automatic recognition is accompanied by the possi- In turn, an extraordinary appeal – a cassation appeal (which bility of initiating proceedings to establish whether or not a specific can be based on statutory grounds) – may be filed with the judgment is subject to the recognition. Such a procedure is optional, Supreme Court against the judgment of the court of appeal. i.e. it is not a formal condition for the recognition of a foreign judgment; and in cases where there is no dispute or doubt about the 2.7 On what grounds can recognition/enforcement of a recognition between the parties, it will probably not be initiated. judgment be challenged? When can such a challenge be The procedure for determining whether a foreign judgment is made? subject to recognition is not fully regulated by the provisions of Part IV of the CCP. In the absence of autonomous regulations, the general rules of procedure should apply accordingly to such The provisions of the CCP (Arts 1146 and 1150 of the CCP) proceedings. The right to institute proceedings is granted by define the following obstacles for the recognition or enforce- the provisions of the CCP not only to the parties to the proceed- ment of a foreign judgment, i.e. prerequisites, the occurrence of ings in which the judgment of a foreign court or other competent which excludes the principle of automatic recognition or leads to authority was made, but also to any entity which has a legal interest a refusal of a declaration of enforceability of a foreign judgment. in doing so. A legal interest is understood as an objectively existing A judgment shall not be recognised or enforced if: need (i.e. caused by a real need to protect a specific legal area) to i) it is not final and binding in the State of origin; obtain a judgment on whether a specific foreign judgment has any ii) it has been made in a case falling within the exclusive juris- effect on the territory of Poland or not. diction of the Polish courts; This procedure is a bilateral one – it cannot be conducted only iii) a defendant who did not enter a dispute as to the merits of with the participation of the applicant, and it is of an adversarial the case was not duly served with the document instituting nature. the proceedings in sufficient time to enable him or her to The application for the establishment that the judgment of a court defend himself or herself; of a foreign State is or is not subject to recognition should meet the iv) a party was deprived of the opportunity to defend himself requirements for each pleading and should, moreover, be paid for. or herself during the proceedings; After the application is filed, the court examines whether it v) a case concerning the same claim between the same parties meets the formal requirements applicable to each pleading insti- was pending in the Republic of Poland earlier than before tuting proceedings (Art. 126 of the CCP) and fiscal require- a court of a foreign State; ments. If the applicant fails to attach the documents specified vi) it is contrary to a previously issued final judgment of a in Art. 1147 of the CCP, the court will call to remove the defects. Polish court or a previously issued final judgment of a court If the application is free from defects or has been successfully of a foreign State, meeting the conditions for its recogni- completed, the court orders that the application be served on tion in the Republic of Poland issued in a case concerning the other party or parties and informs them of the possibility to the same claim between the same parties; or present their views within 14 days. vii) the recognition/enforcement would be contrary to the The court’s determination as to whether the judgment is fundamental principles of the legal order of the Republic subject to recognition may be made in a closed session (there is of Poland. no requirement to hold a hearing in the case). Due to the model of automatic recognition of foreign judgments Foreign judgments which may be enforced by way of execu- adopted in the Polish legal system, the changes made in the foreign tion become enforceable after issuance of a declaration of judgment itself in its country of origin are not without impact enforceability. The declaration of enforceability is given, at the on the validity of such a judgment in the Republic of Poland. If request of the creditor, by a declaration of enforceability of the a recognised judgment is revoked or changed in the country of judgment of the court of a foreign State. origin, it also loses its effectiveness in the Polish legal system. Similarly, an application for a declaration of enforceability must meet the requirements of the pleading instituting the proceed- 2.8 What, if any, is the relevant legal framework ings and, moreover, it must be accompanied by the documents applicable to recognising and enforcing foreign referred to in Art. 1147 of the CCP (see question 2.3 above). An judgments relating to specific subject matters? application for a declaration of enforceability also requires the production of a document stating that the judgment is enforce- The Republic of Poland is a party to many international conven- able in the State of origin (unless enforceability is based on the tions which have a direct impact on the issue of recognition and content of the judgment or on the law of that State). The appli- enforcement of foreign judgments. One of such legal acts is the cation is subject to a fee. NY Convention. It specifies the prerequisites for the recog- The right to file an application is vested on the creditor (the nition and enforcement of arbitral awards in disputes between entity for which the foreign judgment awarded the benefit) or his legal successor under a general or special title. The passive natural persons and legal persons. right-holder is an entity against which the enforcement will be conducted; as a rule, it will be the entity against which the benefit 2.9 What is your court’s approach to recognition and has been awarded in a foreign trial. enforcement of a foreign judgment when there is: (a) a The application is subject to preliminary examination by the conflicting local judgment between the parties relating court as to whether the abovementioned requirements have been to the same issue; or (b) local proceedings pending met. Then the application is served on the other party, who can between the parties? present a position on the application within 14 days. The court shall examine the application at a closed session a) If the foreign judgment is contrary to a previously issued by issuing a judgment on awarding the enforcement clause or final judgment of the Polish court in a case concerning the refusing to award the enforcement clause. same claim between the same parties, then this circumstance The proceedings concerning the determination of the recog- constitutes the so-called obstacle to recognition; such a judg- nition and the declaration of enforceability consist of two ment is not subject to recognition/enforcement pursuant to instances – the judgment of the regional court may be appealed Art. 1146 § 1 point 6 of the CCP and Art. 1150 of the CCP. against by the parties to the court of appeal.

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b) If a case concerning the same claim between the same Under Polish law, the institution of the time bar is a material law parties is pending before a Polish court earlier than before institution, not a procedural one. a court of a foreign State, a judgment originating from a foreign State shall not be subject to recognition pursuant 32 Special Enforcement Regimes Applicable to Art. 1146 § point 5 of the CCP. In such a case, the Polish to Judgments from Certain Countries court will refuse to recognise the foreign judgment and the case will continue to be pending between the same parties before a Polish court. 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to 2.10 What is your court’s approach to recognition and be recognised and enforceable under the respective enforcement of a foreign judgment when there is a regime? conflicting local law or prior judgment on the same or a similar issue, but between different parties? Poland is a party to numerous bilateral and multilateral international agreements which separately regulate the issues of the enforcement In the first scenario, when there is a conflicting local law, such and recognition of judgments. Due to the scope of this study, it is a judgment may be recognised or enforced as long as it is not not possible to discuss each of these legal regimes in detail, hence contrary to the fundamental principles of the legal order of the the basic information concerning them is presented therein. Republic of Poland (ordre public). There is no requirement for Some of these agreements relate to civil matters; others regu- the judgment to be fully compliant with all the provisions of the late separate family matters (divorce, separation, alimony and Polish law. Recognition/enforcement of a judgment is refused other issues). only if recognition or enforcement would be incompatible with Under the NY Convention, the arbitration judgments in the fundamental constitutional principles and the guiding prin- commercial matters which are rendered in a State other than ciples governing individual areas of Polish law. that in which recognition or enforcement is sought, or which are In the second scenario, when a prior judgment on the same not considered as national judgments in that State, are subject to or a similar issue but between different parties was issued, both recognition and enforcement. recognition and enforcement is possible. A refusal to recognise/ In the case of other international agreements to which Poland enforce a judgment is possible only if the judgment is incon- is a party, the scope of judgments subject to recognition is often sistent with a previously issued final decision of a Polish court or broader than under the CCP. a previously issued final decision of a foreign court, meeting the For example, the agreement between Poland and China states conditions for its recognition in the Republic of Poland, issued that the following are subject to recognition and enforcement: in a case concerning the same claim between the same parties. a) judicial judgments in civil cases; b) judicial judgments in criminal cases relating to damage 2.11 What is your court’s approach to recognition and actions; enforcement of a foreign judgment that purports to c) decisions given by the authorities competent in succession apply the law of your country? cases; and d) judgments of arbitration courts, whereby the term “court judgment” within the meaning of the agreement includes Polish courts are not entitled to control the correctness of court settlements in civil cases. foreign court judgments, hence, as a rule, they are not entitled What is particularly important is that the agreement with to assess the correctness of the application of Polish law by a China on arbitration judgments refers to the provisions of foreign court. Only in cases where the recognition or enforce- the NY Convention: “The Contracting Parties recognise and ment of a judgment from a foreign State applying Polish law enforce arbitration judgments rendered in the territory of the would be contrary to the fundamental principles of the domestic other Contracting Party in accordance with the Convention on legal order (the public policy clause) or contrary to the over- Recognition and Enforcement of Foreign Arbitral Awards done riding mandatory provisions (such provisions regarded as being at New York on 10 June 1958.” crucial by a country for safeguarding its public interests, such In accordance with the Agreement with Russia, the parties as its political, social or economic organisation) will the Polish shall recognise and enforce in their territory the following judg- court determine that the judgment is not subject to recognition ments given in the territory of the other Contracting Party: or deny its enforceability. 1) judgments of courts in civil cases; and 2) judgments of courts in criminal cases, insofar as they concern 2.12 Are there any differences in the rules and compensation for damage caused by criminal offences; court procedure of recognition and enforcement between judgments within the meaning of paragraph 1 shall be deemed the various states/regions/provinces in your country? to be settlements reached (approved) before civil courts of a Please explain. pecuniary nature and notarial deeds which have the force of execution under the law of the Contracting Party in whose The CCP is uniformly applied throughout the Republic of territory they have been drawn up, and final judgments of Poland. commercial courts if they are binding and enforceable.

2.13 What is the relevant limitation period to recognise 3.2 With reference to each of the specific regimes set and enforce a foreign judgment? 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 The CCP does not introduce any specific regulation concerning enforcement? the issue of the time limit within which a foreign court’s judgment may be recognised and enforced in the Republic of Poland. The agreements to which Poland is a party in principle

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differentiate between recognition and enforcement, without, arbitration, or it contains decisions on matters beyond the however, explaining the substance of that difference. They scope of the submission to arbitration (however, if the also do not provide for separate special rules for recognition/ decisions on matters submitted to arbitration can be sepa- enforcement of a judgment. rated from those not so submitted, that part of the award The agreement between Poland and China also distinguishes which contains decisions on matters submitted to arbitra- between recognition and enforcement, but the conditions for tion may be recognised and enforced); recognition and enforcement are the same. iv) the composition of the court or arbitration procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for of the country where the arbitration took place; and recognising and enforcing a foreign judgment. v) the judgment has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that The rules specify which documents must be attached to the award was made. application for recognition and enforcement, while the rest is The refusal of recognition and enforcement may also occur generally governed by domestic law (both as regards the deter- when an authority of the State addressed with the request for mination of the court having jurisdiction to make the applica- recognition and enforcement establishes that: tion and the course of the proceedings). International agree- i) under the law of the concerned State, the subject matter of ments usually also regulate the scope and subject matter of the the dispute could not be submitted to an arbitration proce- court’s jurisdiction in proceedings. For example, according to dure; and the agreement concluded with China, a court in proceedings for ii) recognition or enforcement would be contrary to public the recognition or authorisation to enforce a judgment is limited policy in the State concerned. to examining whether the judgment complies with the condi- Furthermore, when discussing, for example, the agreement tions of this agreement. with China, it is worth pointing out that, according to its provi- Some agreements allow for contact with the court that issued sions, judicial judgments will not be recognised and will not be the judgment even in the course of recognition/enforcement allowed to be enforced if: proceedings. For example, the Agreement with Russia states that a) under the law of the Contracting Party in whose territory when ruling a case for recognition and enforcement, the court may the judgment is to be recognised or enforced, the court request clarification from the parties. The court may also request that issued the judgment had no jurisdiction in respect of additional explanations from the court that issued the judgment. the case; However, what is particularly important is that these agree- b) under the law of the Contracting Party in whose territory ments (unlike the CCP) as a rule do not provide for the auto- the judgment was given, the judgment is not binding and matic recognition of judgments. enforceable; Pursuant to Art. IV of the NY Convention, the party c) under the law of the Contracting Party in whose territory requesting recognition and enforcement of the judgment should, the judgment was given, the losing party has not been duly together with this request, produce the duly certified original or summoned by the court; a copy of the judgment, as well as the original or a certified copy d) the party was prevented from defending its rights or, in of the agreement of the parties to the arbitration. Such docu- the event of limitation or lack of procedural capacity, from ments should also be accompanied by a certified translation if being duly represented; the judgment or agreement is not in an official language of the e) in the territory of the Contracting Party in which the judg- State in which recognition or enforcement is sought. ment is to be recognised or enforced, a final judgment has already been passed on the same case between the same 3.4 With reference to each of the specific regimes set parties or proceedings are pending in respect of the same out in question 1.1, on what grounds can recognition/ case or a final judgment has been passed by a court of a enforcement of a judgment be challenged under the third State on the same case; and special regime? When can such a challenge be made? f) recognition or enforcement would be contrary to fundamental principles of law or public order in the Contracting In fact, under each of the specific regimes, there are separate Party in whose territory the judgment is to be recognised provisions regarding when the recognition or enforcement of a or enforced. judgment cannot take place. However, the conditions for recognition/enforcement are Thus, Art. V of the NY Convention lays down negative often defined in a positive way (see Art. 53 of the Agreement with grounds for the recognition and enforcement of a foreign arbi- Russia), but these requirements are also more far-reaching than tral judgment. However, these grounds are taken into account in the CCP (again, referring to the example of the Agreement only on application by the party against whom the judgment with Russia, the judgment is recognised if, in the case where the is made. Recognition and enforcement shall be refused if that law of the other Contracting Party should have been applied, that party provides evidence that: law has been applied, unless the law of the Contracting Party i) the parties to the arbitration agreement were, under the whose authority has ruled is applied in the case and is in no mate- law applicable to them, under some incapacity or the said rial way different from the law of the other Contracting Party). agreement was not valid under the law governing it or under the law of the State in which the award was made; 42 Enforcement ii) the party against whom against the judgment is invoked was not given proper notice of the appointment of the 4.1 Once a foreign judgment is recognised and arbitrator or the arbitration proceedings or was otherwise enforced, what are the general methods of enforcement unable to present his case; available to a judgment creditor? iii) the judgment deals with a difference not contemplated by or not falling within the terms of the submission to An entity which has obtained a declaration of enforceability of a

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foreign judgment in a procedure for the declaration of enforce- 6) the debtor’s obligation to perform a substitutable act; ability of a foreign judgment shall be able to use a state enforce- 7) the debtor’s obligation to perform a non-substitutable act; ment order to enforce the judgment. and Execution on the basis of a foreign court judgment may, 8) obligation to abandon a specific act or not to hinder the however, only be commenced after the judgment granting the creditor’s act. enforcement clause has become final. A longer period of time In order to commence enforcement proceedings, the cred- may lapse before a decision on granting an enforcement clause itor must lodge a request for enforcement with the competent to a foreign decision becomes binding. In order to protect the authority. The request in case of execution of non-monetary creditor during this transitional period, the CCP provides a rule obligations is subject to a fee. according to which until the lapse of the time limit for lodging a complaint against a decision of the regional court judg- 52 Other Matters ment granting an enforcement clause, and in case of lodging a complaint, until it is considered by the court of appeal, this deci- 5.1 Have there been any noteworthy recent (in the sion constitutes the title of the security. Thus, an enforcement last 12 months) legal developments in your jurisdiction order which is not enforceable has the same effect as a national relevant to the recognition and enforcement of foreign interim relief order. The method of securing the claim is deter- judgments? Please provide a brief description. mined by the creditor in the application for security, while separate methods of securing the claim are provided for in the During the last period, the provisions of Art. 1145 et seq. of the case of pecuniary and non-pecuniary claims. What is impor- CCP have not been changed. tant, however, is that the execution of the security may be made conditional on the lodging of a security deposit by the creditor by the regional court. 5.2 Are there any particular tips you would give, or It should also be emphasised that a creditor may also apply critical issues that you would flag, to clients seeking for security before commencing proceedings for granting an to recognise and enforce a foreign judgment in your jurisdiction? enforcement clause to a foreign State court decision on the basis of the general rules provided for in the CCP. These, however, require from the applicant not only prima facie evidence that the The introduced system of automatic recognition of foreign claim whose future execution is to be secured exists, but also decisions is to a large extent a positive solution. No separate demonstration that the applicant has a legal interest in providing procedure is required for the recognition of a judgment. This the security. Such action is necessary especially when there is a undoubtedly makes it easier for a person who has obtained risk that the debtor will dispose of his assets. a favourable foreign judgment in his or her case. The entity The Polish law provides for separate regimes for the enforce- may rely on this judgment before any authority in the Republic ment of monetary and non-monetary obligations. of Poland without the need to initiate separate deliberation The execution of monetary obligations is carried out by a judi- proceedings. Moreover, the system of automatic recognition cial bailiff in one of the following ways: does not hinder other pending proceedings in which recogni- 1) execution against movable property; tion of a foreign judgment is a preliminary issue. This signifi- 2) execution against remuneration for work; cantly reduces the waiting time for obtaining legal protection on 3) execution against bank accounts; the basis of a foreign judgment in the Republic of Poland. 4) execution against other receivables; On the other hand, however, the CCP indicates numerous 5) execution against other property rights; cases in which a decision is not subject to recognition or enforce- 6) execution against immovable property; and ment. Therefore, a creditor who intends to take advantage of a 7) execution against seagoing vessels. decision issued in another country in the territory of the Republic On the other hand, in the case of execution of non-monetary of Poland should be aware of these cases and conduct proceed- obligations, the competent authority to conduct proceedings is ings before a foreign court in such a way that the obtained deci- the district court, and the available methods of execution are: sion is enforceable in Poland. 1) release of movable property; Once enforcement proceedings have commenced, it is advis- 2) release of a document; able to obtain security over the debtor’s assets so that enforce- 3) release of real estate; ment is possible at all (see question 4.1 above). 4) release of a vessel; 5) emptying of premises;

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Dr. Barbara Jelonek-Jarco is a co-managing partner and attorney at law. She participates in court disputes, including international cases, before state and arbitration courts. She is of counsel in numerous proceedings, including international arbitration proceedings and BIT (bilateral investment treaty) disputes. Many of these proceedings are of a precedential nature. Barbara assists clients in strategic consulta- tions and negotiations both at the stages preceding the commencement of court disputes and in their course, as well as in the litigation risk assessment. She conducts long-term projects in corporate and commercial matters. Barbara was involved in court proceedings for one of the largest telecommunications companies in Europe in a dispute over the acquisition of control over a mobile operator. She has authored articles, glossaries, commentaries and monographs on substantive and obligations law and has been a speaker at many conferences, including those devoted to real estate law. She is a Laureate of the Gazeta Prawna – Rising Stars 2012 ranking.

Kubas Kos Gałkowski Tel: +48 12 619 40 45 Rakowicka 7 Email: [email protected] Krakow 31-511 URL: www.kkg.pl Poland

Agnieszka Trzaska-Śmieszek is a partner and attorney at law. She specialises in substantive and procedural civil law. She represents clients in court proceedings, including group proceedings, and provides consultancy services to commercial entities in the scope of the widely understood civil, commercial and companies law. Agnieszka has extensive experience in complicated civil cases, in which problems in the scope of private international law and international commercial arbitration occur, as well as in business matters, including disputes between company shareholders. Agnieszka is always focused on implementing an effective procedural strategy, tailored to a given dispute and client. She has participated in dispute resolutions for clients from the telecommunications, industrial and FMCG sector. Agnieszka is the co-editor of https://www.ClassAction.pl, the portal on class actions in Poland and worldwide, and the author of publications regarding class actions in Poland. She is a Laureate of the Gazeta Prawna – Rising Stars 2014 ranking.

Kubas Kos Gałkowski Tel: +48 12 619 40 50 Rakowicka 7 Email: [email protected] Krakow 31-511 URL: www.kkg.pl Poland

Kubas Kos Gałkowski is a law firm with a strongly grounded position confirmed by rankings conducted both in Poland and abroad, as well as numerous recommendations for the law firm as well as its attorneys (Chambers and Partners, Benchmark Litigation, Who’s Who). Kubas Kos Gałkowski specialises in the following areas: court and arbitration proceedings; group proceedings; real estate law (including project finance); construction works agreements; banking and finance; companies law and commercial law; compliance; contract law; M&A transactions; anti-monopoly law; bankruptcy law and enterprise restructuring; administrative law & procedure; and energy law. With 25 years of experience in advising clients, the firm is committed to excellence in the legal profession. www.kkg.pl

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Rui Botica Santos

CRA – Coelho Ribeiro e Associados Mark Robertson

12 Country Finder Albania, Armenia, Austria, Belarus, 1.1 Please set out the various regimes applicable to Belgium, Croatia, recognising and enforcing judgments in your jurisdiction Cyprus, Czech and the names of the countries to which such special Republic, regimes apply. Denmark, Estonia, Finland, France, Georgia, Applicable Relevant Corresponding Germany, Greece, Law/Statutory Jurisdiction(s) Section Below Hungary, Iran Regime (Islamic Republic Portuguese Civil of), Ireland, Procedure Code Portugal. Section 2. Italy, Jordan, (CPC). Kyrgyzstan, Latvia, Lebanon, Lugano Convention on Lithuania, Convention on the Contract for Luxembourg, Jurisdiction and the International Malta, the Recognition Carriage of Netherlands, Section 3. and Enforcement EU Member States Goods by Road Norway, Poland, of Judgments and Norway, Section 3. of 19 May 1956 Portugal, Republic in Civil and Iceland and ( ). of Moldova, Commercial Switzerland. CMR Romania, Russian Matters of Federation, 30 October Slovakia, Slovenia, 2007 (Lugano Spain, Sweden, Convention). Switzerland, the Hague former Yugoslav Convention on Republic of Civil Procedure Countries signatory Macedonia, of 1 March Section 3. to the Convention. Tunisia, Turkey, 1954 (Hague Turkmenistan, the Convention on United Kingdom Civil Procedure). of Great Britain Hague and Northern Convention on Ireland, and Recognition and Uzbekistan. Enforcement New York of Decisions Convention on Relating to the Recognition Countries signatory All countries Maintenance Section 3. and Enforcement to the Convention. signatory to the Section 3. Obligations of Foreign Convention. of 2 October Arbitral Awards 1973 (Hague 1958 (NY Convention on Convention). Maintenance Obligations).

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Convention on the Portuguese courts to recognise and enforce a foreign judg- the Settlement ment, apart from the rules set out in the previous question. of Investment Disputes Between All countries 2.5 Is there a difference between recognition and States and signatory to the Section 3. enforcement of judgments? If so, what are the legal Nationals of Convention. effects of recognition and enforcement respectively? Other States 1965 (Washington In fact, there are differences between recognition and enforcement. Convention). Recognition operates to give the foreign judgment the same status in the Portuguese jurisdiction as it has in the State of origin. A party may merely wish to seek recognition in order to 22 General Regime secure formal acknowledgment of its rights, but may not seek to enforce them. 2.1 Absent any applicable special regime, what is the Enforcement involves the implementation, of the rights recog- legal framework under which a foreign judgment would nised and awarded by the judgment, via recourse to coercive means. be recognised and enforced in your jurisdiction?

Albania, Armenia, 2.6 Briefly explain the procedure for recognising and Austria, Belarus, Without prejudice to the provisions of international treaties, enforcing a foreign judgment in your jurisdiction. Belgium, Croatia, conventions and European Union regulations and special laws, Cyprus, Czech the legal framework that governs the recognition and enforce- According to Art. 979 of the CPC, the competent Portuguese Republic, ment of foreign judgments in Portugal is the CPC, Chapter V, court with regard to the recognition of foreign judgments is the Denmark, Title XIV (The Review of Foreign Judgments), Arts. 978 to 985. Estonia, Finland, Court of Second Instance (Tribunal da Relação), with jurisdiction France, Georgia, in the area of the defendant’s registered domicile. 2.2 What constitutes a ‘judgment’ capable of Germany, Greece, The Portuguese system for the recognition of foreign judg- recognition and enforcement in your jurisdiction? Hungary, Iran ments is termed a “deliberation or simply formal review”, in (Islamic Republic which it is confirmed whether the judgment is capable of taking of), Ireland, All decisions regarding private rights which are rendered by an effect in Portugal. Italy, Jordan, independently appointed jurisdictional body of any State, which The process is essentially divided into the following steps: Kyrgyzstan, are final, can be recognised or enforced. a) the claim, which must be accompanied by: (i) a copy of the Latvia, Lebanon, European regulations may be applicable in some specific judgment; (ii) an ad justitia power of attorney; and (iii) any Convention on Lithuania, matters as described in the EU chapter. other documents that may be relevant to the recognition the Contract for Luxembourg, proceedings; the International Malta, b) the claim will then be subject to a preliminary analysis by 2.3 What requirements (in form and substance) must the Second Instance Court; Carriage of Netherlands, Section 3. a foreign judgment satisfy in order to be recognised and Goods by Road Norway, Poland, enforceable in your jurisdiction? c) following this, the defendant is served with the statement of 19 May 1956 Portugal, Republic of claim and notice to file a defence within no more than 15 days; (CMR). of Moldova, According to Art. 980 of the CPC, the following requirements Romania, Russian d) the Claimant is entitled to file a reply within 10 days of must be met for a judgment to be recognised: being served with the defence; Federation, a) there are no doubts as to the authenticity of the judgment Slovakia, Slovenia, e) after the close of pleadings, the parties and the attor- documents or the correctness of the decision; ney-general’s department have 15 days in which to file Spain, Sweden, b) the judgment must have the status of a final decision under Switzerland, the closing arguments; and the law of the country where the judgment was given; f) in case the parties do not agree with the decision, they are former Yugoslav c) the judgment was given by a foreign court, the jurisdic- Republic of entitled to appeal. tion of which was not fraudulently obtained and concerns However, if the judgment in question is an arbitral award, the Macedonia, a matter that is not subject to the exclusive jurisdiction of Tunisia, Turkey, competent court will be a Court of First Instance (Tribunal da the Portuguese courts; Primeira Instância). Where the relevant countries are signatories of Turkmenistan, the d) a plea of lis pendens or res judicata cannot be invoked on the United Kingdom the NY Convention, Art. III of the Convention is applicable, and grounds of a case before the Portuguese courts, except in that case the recognition of foreign arbitral judgments follows of Great Britain where the foreign court exercised jurisdiction first; and Northern the same procedure as that applicable to foreign court judgments e) the defendant has been properly served with the docu- as stated in the CPC. Ireland, and ment which instituted the proceedings, under the law of Uzbekistan. the country of the court of origin, and that the proceed- New York ings were conducted in accordance with the adversarial 2.7 On what grounds can recognition/enforcement of a Convention on principle and the principle of equality of the parties; and judgment be challenged? When can such a challenge be made? the Recognition f) the judgment does not contain a decision, the recognition All countries and Enforcement of which is manifestly incompatible with the principles of signatory to the Section 3. of Foreign international public policy of the Portuguese State. A foreign judgment may only be challenged if: Convention. Arbitral Awards a) it does not meet the requirements described in the answer 1958 (NY to question 2.3 above; 2.4 What (if any) connection to the jurisdiction is b) where any of the specific cases of review in Art. 696 a), c) and Convention). required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? g) of the CPC applies, namely: (i) another final judgment finds that the judgment was the result of a crime committed by the judge in the performance of his/her duties; (ii) a There is no specific connection to the jurisdiction required for document is filed of which the applicant party was unaware,

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or which it was unable to use in the proceedings in which 2.12 Are there any differences in the rules and the judgment was made, and which is, per se, sufficient to procedure of recognition and enforcement between alter the decision so as to favour the losing party; or (iii) the the various states/regions/provinces in your country? dispute is based on an act simulated by the parties and the Please explain. court did not use its power to prevent the parties’ improper objective, because it failed to notice the fraud; and Recognition and enforcement apply identically throughout the c) where the judgment was against a Portuguese natural or whole Portuguese territory. The Azores and Madeira are part of legal person on the grounds that the outcome of the claim Portuguese territory. would be more favourable to the judgment debtor if the foreign court had applied Portuguese substantive law. Portuguese courts do not consider whether the judgment 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? complies with Portuguese or foreign substantive law. The existence of a conflicting local law or prior judgment between different parties is not relevant, unless it would lead to incom- There is no specific provision regarding the limitation period for patibility with international public policy rules, since Portugal is the recognition of foreign judgments. The limitation periods appli- a civil law jurisdiction where judges are not bound by stare decisis. cable to the nature or the legal basis of the claim are applicable.

2.8 What, if any, is the relevant legal framework 32 Special Enforcement Regimes Applicable applicable to recognising and enforcing foreign to Judgments from Certain Countries judgments relating to specific subject matters? 3.1 With reference to each of the specific regimes Regulations on recognition and enforcement of foreign judg- set out in question 1.1, what requirements (in form ments are normally applicable to all subject matters. and substance) must the judgment satisfy in order to There are, however, several multilateral conventions, to which be recognised and enforceable under the respective regime? Portugal is a party, related to the recognition and enforcement of judgments regarding specific matters, such as those stated in question 1.1 above. Please find below the answers depending on the specific regime:

Lugano Convention: 2.9 What is your court’s approach to recognition and This Convention applies to civil and commercial matters whatever enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating the nature of the court or tribunal. It does not include tax, customs to the same issue; or (b) local proceedings pending or administrative matters. It basically reproduces the requirements between the parties? in EU Regulation no. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Bis Regulation), with the exception provided in Art. As stated in question 2.6, Portuguese courts only make a formal 47 no. 1, which states that nothing shall prevent the applicant from revision of foreign judgments. availing himself of provisional, including protective, measures in If the judgment is in accordance with the formal requirements accordance with the law of the State requested without a declara- set out in Art. 980 of the CPC, the judgment must be recognised, tion of enforceability being required. unless it is against Portuguese international public order principles. Recognition would be refused in the cases where proceedings Hague Convention on Civil Procedure: between the same parties are pending in Portugal, which were The order for costs and expenses is rendered enforceable commenced before the foreign proceedings. without a hearing (Art. 19). The party seeking enforcement must provide (i) a copy of the judgment fulfilling the conditions 2.10 What is your court’s approach to recognition and required for its authenticity, (ii) proof of the res judicata effect of enforcement of a foreign judgment when there is a the underlying judgment, and (iii) whether that part of the judg- conflicting local law or prior judgment on the same or a ment which constitutes the decision is worded in the language of similar issue, but between different parties? the authority addressed, or in the language agreed between the two States concerned, or whether it is accompanied by a transla- Portuguese courts do not review on the merits of the judgment, tion, in one of those languages, unless there is agreement to the the revision is limited to verifying whether the judgment is contrary, which is certified as correct by a diplomatic officer or contrary to international public policy order or not. Portugal is consular agent of the requesting State, or by a sworn translator a civil law jurisdiction and there is no stare decisis doctrine. of the State addressed.

2.11 What is your court’s approach to recognition and Hague Convention on Maintenance Obligations: enforcement of a foreign judgment that purports to This Convention applies to maintenance obligations arising apply the law of your country? from a family relationship, parentage, marriage or affinity, including a maintenance obligation in respect of a child who is not legitimate. As stated in the answer to the previous question, the issue of A judgment is recognised or enforced according to the conflict the substantive law applied in a foreign judgment concerns the of law rules set out in Arts. 4 to 6 in connection with Art. 8. merits of the case which cannot be reviewed by the Portuguese According to Art. 11, the application of the law designated by courts unless it breaches international public policy. Therefore, this Convention may be refused only if it is manifestly incompat- the revision will be limited to verifying whether the conclusions ible with public policy (“ordre public”). reached on the legal merits, or the procedure adopted, led to a breach of international public policy.

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NY Convention: 3.3 With reference to each of the specific regimes set Portugal ratified the NY Convention in 1994 by Assembly of the out in question 1.1, briefly explain the procedure for Republic Resolution no. 37/94, of 10 March 1994. recognising and enforcing a foreign judgment. The Convention is applicable to arbitral awards that fall within the scope of Art. I. For the regimes set out in the European Regulations and the Art. IV provides that, in order to obtain recognition and enforce- Washington Convention, no exequatur will be necessary and, ment, the parties must supply: (i) the duly authenticated original therefore, enforcement proceedings according to the procedural award or a duly certified copy thereof; and (ii) the original arbitra- law applicable to the Member State where the enforcement is tion agreement or a duly certified copy thereof. If the said award made can commence immediately. In most cases, an applica- or agreement is not made in an official language of the country in tion for recognition and enforcement is made to the competent which the award is enforced, the party applying for recognition district court as set out in the answer to question 2.6 above. and enforcement of the award shall produce a translation of these documents into such language, which shall be certified by an official or sworn translator or by a diplomatic or consular agent. 3.4 With reference to each of the specific regimes set Moreover, in accordance with Art. V, recognition and enforce- out in question 1.1, on what grounds can recognition/ ment of the award may only be refused where: (i) the parties to enforcement of a judgment be challenged under the special regime? When can such a challenge be made? the arbitration agreement were under some incapacity, or the said agreement is not valid; (ii) the party against whom the award is invoked was not given proper notice of the appointment of the Under the special regime, recognition/enforcement may be refused arbitrator or of the arbitration proceedings or was otherwise if any of the criteria set out in Art. V of the NY Convention is met, unable to present his case; (iii) the award deals with a difference as previously stated in the answer to question 3.1 above. There is not contemplated by or not falling within the terms of the submis- otherwise no review of the merits of the judgment. sion to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the deci- 42 Enforcement sions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains 4.1 Once a foreign judgment is recognised and decisions on matters submitted to arbitration may be recognised enforced, what are the general methods of enforcement and enforced; (iv) the composition of the arbitral authority or the available to a judgment creditor? arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with A duly recognised foreign judgment can be enforced in the the law of the country where the arbitration took place; and (v) courts, in which the courts are the competent authorities and the award has not yet become binding on the parties, or has been are assisted by enforcement agents. In court enforcement set aside or suspended by a competent authority of the country in proceedings assets and/or income of the judgment debtor may which, or under the law of which, that award was made. be seized/attached. Pursuant to Art. V, other grounds available for refusal are: As an alternative to the judicial procedure, creditors may use a (vi) the subject matter was not arbitrable; and (vii) the award is prior administrative procedure known by the acronym PEPEX against public policy. (pre-enforcement extrajudicial procedure), which is administered by enforcement agents. PEPEX may be used, inter alia, in cases of : Washington Convention foreign judgments declared to be enforceable, judgments which This Convention established an International Centre for are enforceable pursuant to EU legislation, treaties or conventions Settlement of Investment Disputes ( ). The purpose of ICSID that are binding on Portugal and European enforcement orders. the Centre is to provide facilities for conciliation and arbitra- In PEPEX proceedings, enforcement agents conduct the search tion of investment disputes between Contracting States and for assets and income on Portuguese databases. PEPEX allow nationals of other Contracting States. creditors to obtain information about the possibility of recovering According to Art. 54 no. 1 of the Washington Convention, the money owed to them, very quickly, without the need to have each Contracting State must recognise an award rendered within recourse to legal proceedings. However, PEPEX proceedings the Convention and enforce the pecuniary obligations imposed must be converted into court enforcement proceedings. by that award. Therefore, no exequatur will be needed. The Interim measures, such as the attachment of assets or income enforcement of partial/interim awards is also possible. No. 2 of of the judgment debtor in order to secure the future enforce- Art. 54 provides that, in order to recognise a judgment, a copy of ment of the judgment debt based on the foreign judgment and to the award must be certified by the Secretary-General. prevent the judgment debtor from disposing of assets/income, can be applied for prior to or when a judgment creditor applies 3.2 With reference to each of the specific regimes set for a foreign judgment to be recognised and enforced. out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the 52 Other Matters difference between the legal effect of recognition and enforcement? 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction All conventions provide for automatic recognition of foreign relevant to the recognition and enforcement of foreign judgments, which has the same effects and limitations as judgments? Please provide a brief description. described under the general regime referred to in the answer to question 2.5. There have been no noteworthy legal developments in the Portuguese jurisdiction in the last 12 months.

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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?

Clients seeking to recognise and enforce a foreign judgment in Portugal should bear in mind that the proceedings can be slowed down by the service of proceedings. These delays can be considerable where debtors domiciled abroad have to be served. It is essential to comply with all the legal requirements in the relevant regulations and to ensure that all necessary documents are available. The translation of the documents is essential and must be clear in order to avoid any contradictions or inconsist- encies in the State where the judgment is enforced. As stated in the answer to question 4.2, in Portuguese enforcement proceedings the competent authorities are the courts and enforcement agents, with the latter being selected and appointed by the judgment creditor.

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Rui Botica Santos Nationality: Portuguese; born in 1968. Languages: Portuguese; English; and Spanish. Bars Admitted: Portugal (1995); Brazil (2006); Timor-Leste (2012); and Macau (2013). Additional Education: Post-Graduation Course in European Community Studies, Lisbon University (1994); and Mediation Course in Civil and Corporate Matters, organised by the Portuguese Chamber of Commerce and Industry-Professor Serge Roy-Canada (2001). Partner of CRA (since 1996); Partner of CRA Timor – Timorese Law Firm (since 2006); Arbitrator in several arbitrations (ICC and Ad Hoc Arbitrations related to contractual disputes and Oil & Gas matters); Arbitrator of the official list of the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland (since 2004); Mediator of CAS; Judge at the International Court of Appeal of FIA (since 2011); and Arbitrator of: the “Centro de Arbitragem das Profissões Liberais”, the Portuguese Centre for Commercial Arbitration; and “Centro Brasileiro de Mediação e Arbitragem” (Brazil/RJ – 2018). Conferences/Publications: Speaker at several national and international seminars. Author of several articles related to arbitration and dispute resolution.

CRA – Coelho Ribeiro e Associados Tel: +351 21 383 90 60 Av. Engº Duarte Pacheco Email: [email protected] Emp. Amoreiras, Torre II, 13º A URL: cralaw.com/en 1099-042 Lisboa Portugal

Mark Robertson is a bilingual (English and Portuguese) English solicitor (no current practising certificate). He worked in Portugal for more than 20 years as a lawyer, law lecturer and legal translator before returning to the UK in 2008 where he continues to work as a specialist legal translator. He has extensive experience of the interface between the Portuguese legal system and common law-based legal systems and has translated more than 15 million words of legal documentation from Portuguese to English, including several Portuguese legal manuals. Mark has worked on a regular basis with CRA for more than 15 years, as an English lawyer and translator on both day-to-day projects and major publishing projects such as Sports Law in Portugal, published by Wolters Kluwer.

CRA – Coelho Ribeiro e Associados Tel: +44 1671 404 802 Av. Engº Duarte Pacheco Email: [email protected] Emp. Amoreiras, Torre II, 13º A URL: cralaw.com/en 1099-042 Lisboa Portugal

CRA is an independent law firm founded in 1986 by José Manuel Coelho Ribeiro, then President of the Portuguese Bar Association, and has since then gained an international dimension. CRA has offices in Lisbon, Porto, Sines and, abroad, in Timor-Leste, Brazil and Macau. CRA offers full-service legal advice, with an emphasis on general corporate and business law, to national and international corporations and potential investors, with a specific focus on providing services for foreign investors in Portugal and in Portuguese-Speaking Countries. CRA is recognised to be the first line in areas such as business law, natural resources and dispute resolution. Find out more about CRA: cralaw.com/en

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Tan Xeauwei

Allen & Gledhill LLP Melissa Mak

12 Country Finder Austria, Belgium, Bulgaria, Croatia, 1.1 Please set out the various regimes applicable to Cyprus, Czech recognising and enforcing judgments in your jurisdiction Republic, Estonia, and the names of the countries to which such special Finland, France, regimes apply. Germany, Greece, Hungary, Ireland, Italy, Choice of Court Applicable Latvia, Lithuania, Relevant Corresponding Agreements Act Question 2.8 and Law/Statutory Luxembourg, Jurisdiction(s) Section Below (Cap 39A, 2016 Section 3. Regime Malta, Mexico, Ed.) (“CCAA”). The United Montenegro, the Kingdom, Netherlands, Australia, New Poland, Portugal, Zealand, Sri Romania, Lanka, Malaysia, Slovakia, Slovenia, Reciprocal Pakistan, Hong Spain, Sweden Enforcement of Kong (for judg- and the United Commonwealth ments obtained Kingdom. Judgments up until 30 June Section 3. Act (Cap 264, 1997), Windward 1985 Rev. Ed.) Islands, Brunei 22 General Regime (“RECJA”). Darussalam, Papua New 2.1 Absent any applicable special regime, what is the Guinea and India legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? (except the states of Jammu and Kashmir). Outside any applicable statutory scheme, a foreign judgment may generally be recognised and enforced in Singapore under Hong Kong common law by commencing an action for the judgment debt, Reciprocal Special on the basis that the foreign judgment creates an obligation on Enforcement Administrative the part of the judgment debtor to make payment. The obliga- of Foreign Region of the tion to pay the debt in Singapore is distinct from the original Judgments People’s Republic Section 3. cause of action in the foreign court of origin. Act (Cap 265, of China (for As this is an original action commenced in Singapore, the 2001 Rev. Ed.) judgments on or judgment creditor must establish the Singapore court’s jurisdic- (“REFJA”). after 1 July 1997) tion over the judgment debtor. This requirement will often be (“HKSAR”). satisfied; if the judgment debtor is not in Singapore, service of Maintenance the originating process out of jurisdiction will be permissible Orders New Zealand, the with the leave of court for claims brought to enforce any judg- (Reciprocal United Kingdom, Question 2.8 and ment. Please refer to question 2.4 below. Enforcement) Manitoba, Section 3. Once a judgment is obtained from the Singapore court, it may Act (Cap 169, HKSAR and be enforced. The modes of execution include writs of seizure 1985 Rev. Ed.) Australia. and sale and garnishee orders. Applications may also be made (“MOREA”). for the examination of the judgment debtor or its officers (if the judgment debtor is a company).

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2.2 What constitutes a ‘judgment’ capable of 2.6 Briefly explain the procedure for recognising and recognition and enforcement in your jurisdiction? enforcing a foreign judgment in your jurisdiction.

In respect of recognition and enforcement under the RECJA, Under the common law, the party seeking both recognition REFJA, MOREA or CCAA, such a judgment would be one that and enforcement would have to commence a fresh action for is obtained in a jurisdiction which is: (a) a party to the RECJA, the judgment debt. This would require service of the origi- REFJA, MOREA or CCAA; and (b) satisfies the criteria under nating process (a Writ of Summons and Statement of Claim) on the respective statutes. Please refer to section 3 below. the judgment debtor. The judgment debtor may then enter an In respect of recognition and enforcement under common appearance and file a Defence in the proceedings. law, the judgment would have to satisfy the criteria in question If the claim is a straightforward one, as a matter of practice, 2.3 below. the judgment creditor may typically apply for summary judgment to obviate the need for a full trial. A judgment that may be enforced through registration under 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and the RECJA may be enforced through a common law action, but enforceable in your jurisdiction? the judgment creditor will not be entitled to recover the costs of the action unless an application to register the judgment under the RECJA has been refused, or if the Singapore court orders To be enforceable at common law, a foreign judgment must be: otherwise. The Singapore court will not entertain any proceed- (a) from a court of competent jurisdiction (in the conflict of ings for the recovery of a sum payable under a foreign judgment laws sense) in the foreign country; (b) final and conclusive on which may be registered under the REFJA. the merits by the law of that country; and (c) for a fixed or ascer- tainable sum of money. As for the recognition of a foreign judgment, the require- 2.7 On what grounds can recognition/enforcement of a ments are the same as that for enforcement, except that there is judgment be challenged? When can such a challenge be no requirement for the judgment to be for a fixed or ascertain- made? able sum of money. Where recognition or enforcement of a foreign judgment is sought under the common law, and assuming the requirements 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for set out in question 2.3 have been satisfied, the defendant may recognition and enforcement of a foreign judgment? challenge the action on the following grounds: (a) the foreign judgment had been procured by fraud; (b) enforcement or recognition would be contrary to In respect of recognition and enforcement under the RECJA, Singapore’s public policy; REFJA, MOREA or CCAA, the Singapore court will accept (c) enforcement or recognition would be tantamount to the jurisdiction if the judgment was obtained in a jurisdiction spec- direct or indirect enforcement of foreign penal, revenue or ified in the RECJA, REFJA, MOREA or CCAA (as the case other public laws; or may be). (d) the foreign judgment had been obtained in breach of In respect of recognition and enforcement under common natural justice. law, the Singapore court has to have in personam jurisdiction If enforcement is resisted on these grounds, they should be set over the judgment debtor in respect of an action for the judg- out in the Defence filed by the judgment debtor in response to ment debt. The Singapore court will have in personam jurisdic- the Statement of Claim. tion if the judgment debtor is validly served with the originating For grounds on which recognition and enforcement can be process in Singapore, or is validly served outside Singapore with challenged and set aside under the various statutory regimes, the leave of court. The Singapore court will also have in personam please refer to question 3.4 below. jurisdiction if the judgment debtor submits to its jurisdiction.

2.8 What, if any, is the relevant legal framework 2.5 Is there a difference between recognition and applicable to recognising and enforcing foreign enforcement of judgments? If so, what are the legal judgments relating to specific subject matters? effects of recognition and enforcement respectively?

The common law does not draw any distinction between foreign Recognition of a foreign judgment means that the claim which judgments relating to specific subject matters. forms the subject matter of that judgment, as adjudicated There are two statutory regimes for the recognition and/or before the foreign court, will be regarded as having been fully enforcement of foreign judgments that apply only to specific determined. subject matters: Enforcement of a foreign judgment means that the judgment (a) The CCAA applies to international civil or commercial can be executed as though it were a local judgment. disputes and does not extend to personal law matters such Recognition per se of a judgment does not entitle the judgment as family law, succession and probate, insolvency or personal creditor to enforce the judgment. Recognition is, however, a injury. Tortious claims that do not arise from contracts, pre-requisite to enforcement. claims relating to the validity of or (non-contractual) infringe- Typically, recognition is used to bar further action on the ment of intellectual property rights (other than copyright and same facts between the same parties (i.e., to raise an estoppel), related rights), and anti-trust matters are also excluded. while enforcement is used in order to execute the judgment in (b) The MOREA provides a statutory basis for the reciprocal the forum and obtain payment. enforcement of maintenance orders in Singapore.

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2.9 What is your court’s approach to recognition and liable or accountable therefor acknowledges the claim or enforcement of a foreign judgment when there is: (a) a makes any payment in respect thereof, the right shall be conflicting local judgment between the parties relating deemed to have accrued on and not before the date of the to the same issue; or (b) local proceedings pending acknowledgment or the last payment. between the parties? (b) Under section 29(1) of the LA, where the action is based upon or concealed by the fraud of the defendant or his For (a), if there are two conflicting judgments between the parties agent or of any person through whom he claims or his relating to the same issue, the general rule would be that the first agent, the period of limitation shall not begin to run until in time prevails, and the first judgment creates an estoppel against the plaintiff has discovered the fraud, as the case may be, the recognition of the later judgment. If there is a prior conflicting or could, with reasonable diligence, have discovered it. local judgment between the parties relating to the same issue, the As regards the statutory regimes, an application for the registra- foreign judgment will not be recognised or enforced. tion of a judgment under the RECJA must be made 12 months from For (b), if there are local proceedings pending, the Singapore the date of the judgment, although the court has the discretion to court is likely to accord primacy to a prior foreign judgment extend this period. The corresponding period for applications under between the parties which may be recognised under Singapore the REFJA is six years after the date of the judgment or, where there law. A foreign judgment between the same parties relating to have been proceedings by way of appeal against the judgment, after the same issues would give rise to the defence of estoppel. the date of the last judgment given in those proceedings. Under the CCAA, an application for the recognition and enforcement of a judgment may be made at any time, as long as the foreign judgment 2.10 What is your court’s approach to recognition and has effect and is enforceable in the state of origin. 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? 32 Special Enforcement Regimes Applicable to Judgments from Certain Countries Even if there is a conflicting local law or prior judgment on the same or similar issue, there will be no estoppel if the local law or 3.1 With reference to each of the specific regimes prior judgment concerned different parties and is not binding on set out in question 1.1, what requirements (in form the present parties. In such circumstances, as long as the require- and substance) must the judgment satisfy in order to ments for recognition and/or enforcement are met, the Singapore be recognised and enforceable under the respective regime? court will ordinarily not reopen the legal or factual merits of the claim which led to the issuance of the foreign judgment. RECJA The judgment must be issued by a superior court and be a judg- 2.11 What is your court’s approach to recognition and ment or order whereby any sum of money is made payable. This enforcement of a foreign judgment that purports to includes an arbitration award if the award has, under the law in apply the law of your country? force in the place where the award was made, become enforceable in the same manner as a judgment given by a court in that place. A foreign judgment that purports to apply the laws of Singapore The RECJA does not apply to any judgment which may be is still a judgment of a foreign court. The ordinary rules appli- recognised or enforced under the CCAA. cable to the recognition and/or enforcement of foreign judg- The Reciprocal Enforcement of Commonwealth Judgments ments will apply. (Repeal) Act 2019 to repeal the RECJA was passed in September 2019, but it has yet to take effect. The intention is for the stat- 2.12 Are there any differences in the rules and utory regimes for the reciprocal enforcement of foreign judg- procedure of recognition and enforcement between ments to be streamlined such that only a single statutory regime the various states/regions/provinces in your country? under the REFJA applies. Please explain. REFJA No. There is only one uniform system of law that applies across The Act applies to any interlocutory or final judgment or order Singapore. given or made by a court (as specified by an order by the Minister published in the Government Gazette) in any civil proceedings, or a judgment or order given or made by a court in any criminal 2.13 What is the relevant limitation period to recognise proceedings for the payment of a sum of money in respect of and enforce a foreign judgment? compensation or damages to an injured party, and includes a consent judgment, a consent order and a judicial settlement. Since a common law action for the enforcement of a foreign Both money judgments (i.e. a judgment under which a sum is judgment is an action on an implied debt, it will be subject to payable) and non-money judgments (i.e. a judgment that is not a the limitation period of six years under section 6(1)(a) of the money judgment) may be registered for enforcement under the Limitation Act (Cap 163, 1996 Rev. Ed.) (“LA”). REFJA. A non-money judgment will only be registered if, having The limitation period commences from the date of the judg- regard to the circumstances of the case and the nature of the relief ment giving rise to the implied debt. However, there are a contained in the judgment, the Singapore court is satisfied that number of exceptions to this, including the following as may be enforcement of the judgment would be just and convenient. applicable to a foreign judgment: The judgment must be final and conclusive as between the (a) Under section 26(2) of the LA, where any right of action parties, unless it is an interlocutory judgment. The sum payable has accrued to recover any debt or other liquidated pecu- thereunder cannot be in respect of taxes or other charges of a niary claim, or any claim to the personal estate of a deceased like nature or in respect of a fine or other penalty. A judgment person or to any share or interest therein, and the person shall be deemed to be final and conclusive notwithstanding that an appeal may be pending or it is subject to appeal.

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The REFJA does not apply to any judgment which may be Under the CCAA, an application may be made to the recognised or enforced under the CCAA. Singapore court for a foreign judgment to be recognised, or to be recognised and enforced. CCAA The recognition and enforcement regime under the Act extends 3.3 With reference to each of the specific regimes set to foreign judgments given in international cases where there out in question 1.1, briefly explain the procedure for is an exclusive choice of court agreement concluded in a civil or recognising and enforcing a foreign judgment. commercial matter. An international case is any case where a claim is for the recognition, or recognition and enforcement, of a foreign judgment. A foreign judgment means a judgment RECJA/REFJA An application to register a judgment under the RECJA and given by a foreign court of a state that is a party to the Hague REFJA is made by an ex parte originating summons with a Convention of 30 June 2005 on Choice of Court Agreements supporting affidavit exhibiting the judgment or a verified or (“Convention”), being the court designated in an exclusive certified or duly authenticated copy. If the judgment is not in choice of court agreement or a court to which a chosen court has, the English language, it must be accompanied by a translation in accordance with the law or practice relating to the allocation of certified by a notary public or authenticated by affidavit. jurisdiction or transfer of cases among courts in that contracting An order granting leave to register the judgment, specifying state, transferred the case to which the judgment relates. the period within which an application may be made to set A judgment includes any final court decision on the merits, a aside the registration, must be served on the judgment debtor. consent order, a consent judgment or a judgment given by default, Execution proceedings for the registered judgment cannot be or a determination by a court of any costs or expenses relating commenced until after the expiration of this period or the final thereto. determination of any application to set aside registration. A foreign judgment will only be recognised if it has effect in the state of origin, and enforced only if it is enforceable in the state of origin. CCAA An application for the recognition and/or enforcement of a The CCAA does not apply where the exclusive choice of foreign judgment is made by an ex parte originating summons court agreement that designates a court of a Contracting State supported by affidavit. The affidavit must exhibit a complete was concluded before the Convention entered into force in that and certified copy of the foreign judgment, and a certified copy Contracting State. of the exclusive choice of court agreement applicable to the relevant dispute. Documents that are not in the English language MOREA must be accompanied by a certified translation. The Singapore court may register a foreign maintenance order An order granting recognition and/or enforcement of a made by a court in a reciprocating country. A maintenance foreign judgment must be served on every party to the proceed- order includes any order which corresponds to the following ings in which the foreign judgment was obtained within 28 description: (a) an order providing for the payment of a lump days. The order must also state that any party may apply to set sum or the making of periodic payments by a man towards the aside the court order within 28 days after service (or such longer maintenance of his wife or foreign wife or by a person towards period allowed by the Singapore court). The order only takes the maintenance of his child; or (b) an order adjudging, finding effect after the expiry of the time limit to set aside the order. or declaring a person to be the father of a child, which also provides for the payment by such person of expenses incidental to the child’s birth or, if the child had died, funeral expenses. MOREA A foreign maintenance order may be registered by a prescribed officer of the Singapore court if a certified copy of the main- 3.2 With reference to each of the specific regimes set tenance order is received by the Minister from the respon- out in question 1.1, does the regime specify a difference sible authority in a reciprocating country and the Minister has between recognition and enforcement? If so, what is the forwarded such order to the officer. Once the foreign mainte- difference between the legal effect of recognition and nance order is registered, it may be enforced in the same way as a enforcement? maintenance order made under the Singapore Women’s Charter (Cap 353, 2009 Rev. Ed.). The statutory regimes are premised on a distinction between recognition and enforcement, but do not expressly prescribe the different legal effects of recognition and enforcement. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ Under the RECJA, REFJA and MOREA, the effect of regis- enforcement of a judgment be challenged under the tration is to enable the foreign judgment or maintenance order special regime? When can such a challenge be made? to be enforced in Singapore as it if had been made by a Singapore court. It is not necessary for a judgment or maintenance order to be registered in order for it to be recognised. RECJA This legal distinction is recognised in section 11 of the REFJA, Registration must be refused on the following grounds: which provides that a foreign judgment to which the registration (a) the foreign court had acted without jurisdiction; procedure applies shall be recognised in any court in Singapore (b) the judgment debtor had not voluntarily appeared or as conclusive between the parties in all proceedings founded on otherwise submitted or agreed to submit to the jurisdic- the same cause of action, whether or not the judgment can or tion of the foreign court; has been registered. However, such foreign judgment will not (c) the judgment debtor (as a defendant) had not been served be recognised if registration of the judgment had been, or would with process and did not appear, notwithstanding that he have been, set aside on some ground other than that: (a) a sum was ordinarily resident or was carrying on business within of money was not payable; (b) the judgment had been wholly the jurisdiction of the foreign court or had agreed to or partly satisfied; or (c) the judgment could not be enforced by submit to its jurisdiction; execution in the country of origin at the date of the application. (d) the judgment had been obtained by fraud;

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(e) the judgment debtor satisfies the registering court either the proceedings were instituted in a manner incompatible that an appeal for the judgment is pending, or that the with the fundamental principles in Singapore concerning judgment debtor is entitled to and intends to appeal against the service of documents; the judgment; or (d) the foreign judgment is inconsistent with a judgment given (f) the judgment was in respect of a cause of action which by a Singapore court in a dispute between the same parties; the Singapore court would not recognise for public policy (e) the foreign judgment is inconsistent with an earlier judg- reasons. ment given in another state between the same parties on the same cause of action, and the earlier judgment satisfied REFJA the conditions under Singapore law for recognition; Registration must be set aside if: (f) the foreign judgment is being reviewed or appealed against (a) the REFJA does not apply to the judgment or was regis- in the state of origin or the time for applying for a review tered in contravention of the requirements for registration; or appeal in the state of origin has not expired; (b) the foreign court had no jurisdiction; (g) the exclusive choice of court agreement designates a (c) the judgment debtor (as a defendant) had not received particular court and the chosen court has the discretion notice of the proceedings in sufficient time to enable him to transfer the case to another court in the same state and to defend the proceedings and did not appear, notwith- does so, and the transferee court issues a judgment against standing that process may have been duly served on him a party who had objected in a timely matter to the transfer; in accordance with the laws of the foreign country; or (d) the judgment had been obtained by fraud; (h) if, and to the extent that, the foreign judgment awards (e) enforcement of the judgment would be contrary to the damages in excess of compensation for the actual loss or public policy of Singapore; or harm suffered. (f) the rights under the judgment were not vested in the person seeking registration under the Act. MOREA Notably, under the REFJA, the foreign court shall not be The registration of a foreign maintenance order will be cancelled deemed to have had jurisdiction if the proceedings in the foreign if the registered order is revoked by: (a) an order of the Singapore court had been in breach of an agreement to settle the dispute, court; (b) a provisional order made by the Singapore court and unless the defendant had submitted to the jurisdiction of the confirmed by the court which made the foreign order, notice of foreign court. which has been received by the Singapore court; or (c) an order In addition, registration may be set aside if: made by the foreign court, notice of such revocation having (a) the matter in dispute in the proceedings, which forms been received by the Singapore court. the subject of the registered judgment, was the subject of When an application for the variation of or revocation of a a prior final and conclusive judgment by a court having registered foreign order is made under the Act, the Singapore jurisdiction in the matter; or court will apply the law applied by the country in which the (b) the notice of registration had not been served on the judg- foreign order was made. If, however, the payer and the payee ment debtor, or the notice of registration was defective. are both residing in Singapore for the time being, the Singapore courts will apply Singapore law, which allows for the revocation CCAA of a maintenance order if the order was based on any misrep- The grounds for refusal of recognition and enforcement under resentation or mistake of fact, or if there has been any material the Act mirror the grounds under the Convention, with minor change in circumstances since the order was made. differences. Recognition and/or enforcement must be refused in the 42 Enforcement following cases: (a) the defendant in the proceedings in which the foreign 4.1 Once a foreign judgment is recognised and judgment was obtained was not notified of the document enforced, what are the general methods of enforcement by which the proceedings were instituted in sufficient time available to a judgment creditor? to enable him to defend the proceedings, unless the law of the state of origin permits the challenge of such noti- The usual methods of enforcement applicable to a judgment fication and the defendant had entered appearance and issued by the Singapore courts will apply: presented his case without challenging the notification (a) writs of seizure and sale for the seizure and sale of immov- before the foreign court; able and movable (including securities such as shares and (b) the foreign judgment was obtained by fraud in connection debentures) properties; with a matter of procedure; or (b) examination of the judgment debtor on his property; (c) the recognition or enforcement of the foreign judgment (c) garnishee orders requiring third parties, such as banks, would be manifestly incompatible with the public policy of who are indebted to the judgment debtor to pay the judg- Singapore, including circumstances where the proceedings ment creditor the amount of any debt due or accruing due in the foreign court are incompatible with fundamental to the judgment creditor in satisfaction of the judgment; principles of procedural fairness in Singapore. (d) appointment of a receiver by way of equitable execution; Recognition and/or enforcement may be refused on the (e) application for an order to commit the judgment debtor for following general grounds: contempt of court; and (a) the exclusive choice of court agreement is null and void (f) commencement of bankruptcy (against individuals) or under the law of the state of the chosen court, unless the winding-up proceedings (against companies), where appli- chosen court has determined that the agreement is valid; cable. (b) a party to the exclusive choice of court agreement lacked Foreign maintenance orders registered under the MOREA capacity under Singapore law to enter into that agreement; may generally be enforced through the same methods above, as (c) the defendant in the proceedings in which the foreign judg- well as by an order to attach the earnings of the payer. ment was obtained was notified of the document by which

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52 Other Matters

While the Reciprocal Enforcement of Commonwealth Judgments (Repeal) Act 2019 to repeal the RECJA was passed in September 2019, as of the date of writing, it has not come into effect.

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?

Under the RECJA, REFJA and CCAA, execution cannot be levied until the expiry of the time period limited for the judgment debtor to apply to set aside registration or the order granting enforcement. If there is a real risk that the judgment debtor’s assets may be moved out of the jurisdiction, the judgment creditor may consider applying for a Mareva injunction.

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Tan Xeauwei’s areas of expertise encompass corporate litigation and international arbitration. She has substantial experience handling banking disputes, shareholders’ disputes, trust and property disputes and commodities disputes, including as lead counsel in the Singapore High Court, Singapore International Commercial Court, Singapore Court of Appeal as well as in international arbitrations. She is effectively bilingual in English and Chinese and has rendered expert opinions for proceedings in England and the People’s Republic of China. Xeauwei has been recognised for her work in The Legal 500 Asia Pacific, and is cited as being “clear and concise” and as taking “a well-rounded approach when looking for solutions”.

Allen & Gledhill LLP Tel: +65 6890 7843 One Marina Boulevard, #28-00 Email: [email protected] Singapore 018989 URL: www.allenandgledhill.com

Melissa Mak’s practice focuses on commercial litigation and international arbitration. Melissa has experience in a range of areas, including banking and shareholders claims and joint-venture and trust disputes. She also advises banks, large corporates, statutory boards and regulatory agencies on financial and technology regulation and corporate governance. Prior to joining Allen & Gledhill, Melissa was a Justices’ Law Clerk and an Assistant Registrar at the Supreme Court of Singapore, where she was involved in the establishment of the Singapore International Commercial Court. She previously taught Principles of Property Law at the National University of Singapore and has contributed chapters to Singapore Civil Procedure and Singapore Law – 50 Years in the Making. Melissa graduated from the University of Cambridge with a B.A. (Hons) Degree (Double First Class) in 2009, and holds a B.C.L. (Distinction) from the University of Oxford and an LL.M. from Harvard Law School. She was called to the Singapore Bar in 2015.

Allen & Gledhill LLP Tel: +65 6890 7148 One Marina Boulevard, #28-00 Email: [email protected] Singapore 018989 URL: www.allenandgledhill.com

Allen & Gledhill is an award-winning full-service South-east Asian law firm providing legal services to a wide range of premier clients, including local and multinational corporations and financial institutions. The Firm is consistently ranked as a market leader in Singapore and South-east Asia, having been involved in a number of challenging, complex and significant deals, many of which are the first of its kind. 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. With a growing network of associate firms and offices, it is well-placed to advise clients on their business interests in Singapore and beyond, on matters involving South-east Asia and the Asian region. With offices in Singapore, Myanmar and Vietnam; its associate firm, Rahmat Lim & Partners in Malaysia; and its alliance firm, Soemadipradja & Taher in Indonesia, Allen & Gledhill has over 600 lawyers in its network across the region. www.allenandgledhill.com

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Spain Spain

Alfredo Guerrero

King & Wood Mallesons Fernando Badenes

12 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.

Corresponding Applicable Law/Statutory Regime Relevant Jurisdiction(s) Section Below EU Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial All countries within the EU. Section 3. matters (“Brussels I Bis Regulation”). Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforce- All countries within the EU, except ment of judgments in matrimonial matters and the matters of Section 3. Denmark. parental responsibility, repealing Regulation (EC) No 1347/2000 (“Brussels II Bis Regulation”). Regulation (EU) No 2015/848 of the European Parliament All countries within the EU, except and of the Council on insolvency proceedings (“Insolvency Section 3. Denmark. Regulation”). Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of All countries within the EU, except Section 3. authentic instruments in matters of succession and on the crea- Denmark and Ireland. tion of a European Certificate of Succession (“Succession Regulation”). All countries within the EU, Iceland, Convention on jurisdiction and the recognition and enforcement Norway and Switzerland. of judgments in civil and commercial matters 2007 (“Lugano On April 8, 2020, the United Section 3. Convention”). Kingdom (“UK”) requested to join the Convention, but it is not yet a party. New York Convention on the Recognition and Enforcement of All countries signatory to the Section 3. Foreign Arbitral Awards 1958 (“NY Convention”). Convention. European Convention on International Commercial Arbitration All countries signatory to the Section 3. 1961 (“Geneva Convention”). Convention. Convention on the Settlement of Investment Disputes Between All countries signatory to the States and Nationals of Other States 1965 (“Washington Section 3. Convention. Convention”). Countries with whom Spain has signed a bilateral treaty on enforcement (for Bilateral treaties. Section 3. instance, Colombia, El Salvador, Israel, Mexico and Tunisia). Act 29/2015, of 30 July, on international legal cooperation on All countries not part of any multilat- Section 2. civil matters (“Legal Cooperation Act”). eral or bilateral convention. 2005 Hague Convention on Choice of Court Agreements (“2005 All countries signatory to the Section 3. Hague Convention”). Convention, including the UK.

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22 General Regime jurisdiction is required to accept jurisdiction for recognition and enforcement of a foreign judgment save that the judgment, that shall be final, derives from a proceeding decided by a Court or 2.1 Absent any applicable special regime, what is the Tribunal. legal framework under which a foreign judgment would The case will be heard by the First Instance Court or be recognised and enforced in your jurisdiction? Commercial Court (depending on the subject matter of the judicial decision) of the registered domicile of the defendant or, Civil and commercial enforcement in Spain is governed under secondarily, where the enforcement will effectively take place or, the Civil Procedure Act (Ley de Enjuiciamiento Civil ), Book III lastly, the Court at which the claim is filed. In case the enforced and, particularly, by the Legal Cooperation Act, Title V. company is under insolvency proceedings in Spain, the case will be heard by the Commercial Court that handles such insolvency 2.2 What constitutes a ‘judgment’ capable of proceedings if the subject matter is within the competence of recognition and enforcement in your jurisdiction? the latter.

Any judicial decisions, legally defined as those rendered by a 2.5 Is there a difference between recognition and jurisdictional body of any State independently appointed, can be enforcement of judgments? If so, what are the legal recognised or enforced. With regard to interim measures, recog- effects of recognition and enforcement respectively? nition or enforcement is only available provided that, before its adoption, a hearing took place in the presence of the defendant There are differences between recognition and enforcement. in circumstances when their refusal would entail a breach of the Enforcement means that a judgment may be executed before the right to receive effective legal protection. competent Court, while recognition is the process of giving the With regard to specific subject matters, the only rules to be same effects to the judgment in the State in which enforcement applied are the European Regulations. is sought as it does in the State of origin. The main reason why a judgment creditor may choose to 2.3 What requirements (in form and substance) must merely recognise the judgment is to prevent the debtor from trig- a foreign judgment satisfy in order to be recognised and gering litigation concerning the same subject matter, or where enforceable in your jurisdiction? the creditor aims to recognise a legal situation in the relevant country (e.g. divorce). However, for the judgment to deploy all its Firstly, note that, save some exceptions (pursuant to certain effects and if the judgment creditor wants to compel the debtor international treaties), according to the Legal Cooperation Act to comply with the said judgment, enforcement must be sought. for the enforcement of foreign judgments, it is necessary beforehand to undergo a formal contentious process for its recognition 2.6 Briefly explain the procedure for recognising and called “exequatur”. In these cases, it is necessary to supply, along enforcing a foreign judgment in your jurisdiction. with the claim, the following documents: (i) the original or certified copy of the foreign judgment duly legalised or apostilled; (ii) when the decision was rendered in default, the document veri- In general, the exequatur procedure described under question fying that the defendant was notified with a summoning order; 2.3 will take place (save for the provisions contained in inter- (iii) a document attesting that the ruling is final and enforceable national treaties where this procedure is not necessary) and the in the country of origin; (iv) the corresponding translations; and judgment creditor will file a claim seeking the recognition and (v) the power of attorney. subsequent enforcement of the decision. As stated above in Further, the basic requirements for any foreign judgment (not question 2.4, the case will be heard by the First Instance Court subject to any international convention) to be recognised in Spain or Commercial Court (depending on the subject matter of the are the following: (i) the judgment shall be final (i.e. no appeal judicial decision) of the registered domicile of the defendant or, has been submitted); (ii) it cannot be against the public policy of secondarily, where enforcement will effectively take place or, Spain; (iii) it should have not breached the rights of defence, as lastly, the Court at which the claim is filed. In case the enforced would occur if the judgment was rendered in default when no company is under insolvency proceedings in Spain, the case will notification took place with enough time to prepare a defence; be heard by the Commercial Court that handles such insolvency (iv) the foreign Courts should have not decided on a matter for proceedings if the subject matter is within competence of the which Spanish Courts were exclusively competent or concerning latter. In these proceedings, no hearing will take place and the other matters when the jurisdiction of the foreign Court was not public prosecutor will be involved. based on the basis of a reasonable connection; (v) it cannot be The ruling of the Court recognising the foreign judgment irreconcilable with a judgment rendered in Spain; (vi) it cannot is subject to appeal first before the Appeal Court and, subse- be irreconcilable with a prior foreign judgment when the latter quently, before the Supreme Court following the requirements meets the necessary conditions for its recognition in Spain; and set forth under the Civil Procedure Act. (vii) no pending proceedings have taken place between the same Further, along with the exequatur claim, enforcement can be parties and on the same subject matter in Spain which have sought. Enforcement proceedings are governed by the Civil commenced on a previous date. Procedure Act. They commence with a claim (either separate or With regard to specific subject matters, the only rules to be along with the exequatur claim) seeking the enforcement of the applied are the European Regulations, highlighted in question 1.1. judgment or award. The claim shall be accompanied with: (i) a copy of the decision (in arbitration, also a copy or the agree- 2.4 What (if any) connection to the jurisdiction is ment and the document verifying its notification to the parties required for your courts to accept jurisdiction for is requested); (ii) the power of attorney; and (iii) any other docu- recognition and enforcement of a foreign judgment? ments that may be relevant to the enforcement proceedings. The legal clerk will then proceed with the enforcement, rendering an According to the Legal Cooperation Act, no connection to the order stating the affected parties and the subject matter of the

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enforcement, as well as the investigation and research measures 2.9 What is your court’s approach to recognition and aimed at localising the assets of the judgment debtor. Finally, enforcement of a foreign judgment when there is: (a) a once the assets have been identified, they will be allocated (either conflicting local judgment between the parties relating directly or after being sold) to the judgment creditor. to the same issue; or (b) local proceedings pending Please note that in case of opposition to the enforcement of between the parties? the foreign judgment, the ruling that decides on such opposition can be subject to further appeal. In case of dismissal of In the cases highlighted, according to the Legal Cooperation the enforcement without opposition, it is also possible to appeal Act, recognition will be refused if it (i) would be irreconcilable such decision before the Appeal Court. with a Spanish ruling, and (ii) cannot be recognised in scenarios Lastly, note that, in general, the average time for enforcement where pending proceedings between the parties take place in is from four months to one year, and that pursuant to Articles Spain if they have commenced before the foreign proceedings. 49 and 50.3 of the Legal Cooperation Act, partial recognition or enforcement is possible. 2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a 2.7 On what grounds can recognition/enforcement of a conflicting local law or prior judgment on the same or a judgment be challenged? When can such a challenge be similar issue, but between different parties? made? Since Spanish Courts cannot review the merits, the revision will This process cannot entail a revision on the merits, but it is be limited to verifying whether the judgment is against public designed to merely verify that formal requirements are met, policy when applying any applicable law to the case. Further, as in order to avoid an “unfair” judgment being enforced under stated above in question 2.9, if the foreign judgment is irrecon- Spanish law. This revision can be carried out during both the cilable to a Spanish judgment, it will not be recognised pursuant recognition (exequatur) and enforcement stages. Thus, if the to the Legal Cooperation Act. legal requirements are met, recognition and enforcement will generally take place. 2.11 What is your court’s approach to recognition and With regard to the grounds to challenge the recognition, enforcement of a foreign judgment that purports to these are summarised in question 2.3. In relation to enforce- apply the law of your country? ment, the eventual grounds included under the Civil Procedure Act are very limited. In this sense, please note that the debtor As stated in question 2.10, Spanish Courts will neither review could claim that: (i) the limitation period to file the enforcement the merits nor the procedural rules that may have been applied. claim has elapsed; (ii) it has complied with the judgment; (iii) the Therefore, the revision will be limited to verifying whether any principal amount of the enforcement is higher than the original of the conclusions reached (concerning the legal merits) or the penalty; and (iv) other limited procedural grounds (for instance, procedure (e.g. whether the parties could properly defend them- the lack of capacity of the claimant, the nullity of the judicial selves) amounted to a breach of public policy. order or the lack of capacity of the defendant for being considered the debtor within enforcement proceedings). Moreover, if the judgment is against Spanish public policy, it 2.12 Are there any differences in the rules and can be neither recognised nor enforced, and according to Article procedure of recognition and enforcement between 36.2 of the Civil Procedure Act and Article 21.2 of the Organic the various states/regions/provinces in your country? Law of the Judicial Power, Spanish Courts would not be compe- Please explain. tent to hear cases which involve sovereign immunity. Both concepts are construed narrowly by Spanish Courts. Enforcement in Spain takes place identically throughout the In addition, there are no countries whose judgments are histor- whole territory. ically subject to a higher degree of scrutiny in this regard. In this vein, please note that although reciprocity is not requested under 2.13 What is the relevant limitation period to recognise the Legal Cooperation Act, the Government could issue a Royal and enforce a foreign judgment? Decree stating that no cooperation will take place with those foreign countries that repeatedly refuse cooperation. Lastly, please note that in Spain, anti-suit injunctions are not Spanish case law has clarified that the limitation period is five available. years as from the date the foreign judgment is made final, pursuant to Article 518 of the Civil Procedure Act.

2.8 What, if any, is the relevant legal framework 32 Special Enforcement Regimes Applicable applicable to recognising and enforcing foreign judgments relating to specific subject matters? to Judgments from Certain Countries

In general, aside from the European Regulations concerning 3.1 With reference to each of the specific regimes specific subject matters, it is not foreseen that any particular legal set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be framework applies. In this sense, the European Regulations recognised and enforceable under the respective regime? applicable are: (i) the Brussels I Bis Regulation; (ii) the Lugano Convention; (iii) the Brussels II Bis Regulation; (iv) the Insolvency Regulation; and (v) the Succession Regulation. Find below the answers depending upon the specific regime: a) Brussels I Bis Regulation: The decisions that can be recognised and enforced are those that comply with the

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definition provided in Article 2.a) and which fall within It directly refers to the provisions of the Brussels I Bis its scope. Any of these decisions rendered by any Member Regulation for the enforcement of such resolutions. State shall be automatically recognised, without the need Any Member State could challenge the recognition of an for any exequatur procedure in this regard. In the same insolvency proceeding opened or the enforcement of any vein, a judgment given in a Member State which is enforce- judgment issued within such insolvency proceeding when able in that Member State shall be enforceable in the other such recognition or enforcement could produce effects Member States without any declaration of enforceability contrary to the public policy of such Member State. being required. d) Succession Regulation: The decisions that can be Having said that, the parties shall supply the following enforced are those that comply with the definition documents: (i) a copy of the judgment which satisfies the provided in Article 3.1.g) and which fall within its scope. conditions necessary to establish its authenticity; and (ii) It practically reflects the Brussels I Bis Regulation, save the certificate issued pursuant to the provisions contained for some minor differences including the interim meas- in the regulation. Further, where necessary, translation of ures that can be ordered together with the enforcement of the documents may be required. the judgment. It also expressly recognises the possibility Moreover, in order to be recognised or/and enforced, the judg- of partial enforcement. ment: (i) must comply with the public policy; (ii) if rendered e) Lugano Convention: The decisions that can be enforced in default, the defendant should have been served with the are those that fall within its scope. It basically reproduces the document which instituted the proceedings (or with an equiv- requirements stated in the Brussels I Bis Regulation, save for alent document) in sufficient time and in such a way as to the last mention of interim measures, which can be ordered enable him to arrange for his defence, unless the defendant together with the enforcement of the judgment. It recog- failed to commence proceedings to challenge the judgment nises the possibility of a partial enforcement of a judgment. when it was possible for him to do so; (iii) should not be irrec- f) NY Convention: The Convention is applicable to any arbi- oncilable with a judgment given between the same parties in tral awards that fall within the description stated in Article the Member State addressed; (iv) should not be irreconcil- I. According to Article IV, the parties, in order to obtain able either with an earlier judgment given in another Member recognition and enforcement, shall supply: (i) the duly State or in a third State involving the same cause of action authenticated original award or a duly certified copy thereof; and between the same parties, provided that the earlier judg- and (ii) the original arbitration agreement or a duly certi- ment fulfils the conditions necessary for its recognition in the fied copy thereof. Further, if the said award or agreement Member State addressed; and (v) cannot conflict with certain is not made in an official language of the country in which sections of the regulation. the award is enforced, the party applying for recognition The requirements set out above apply to all forms and types and enforcement of the award shall produce a translation of of judgments that fall within the scope of the regulation. these documents into such language, which shall be an offi- However, with respect to interim measures, please note that the cial or sworn translation. applicant should provide: (i) a copy of the judgment which satis- In addition, pursuant to Article V, recognition and enforce- fies the conditions necessary to establish its authenticity; (ii) ment of the award may only be refused where: (i) the parties where the measure was ordered without the defendant being to the arbitration agreement were under some incapacity, summoned to appear, proof of service of the judgment; and (iii) or the said agreement is not valid; (ii) the party against the certificate issued pursuant to the regulation, containing a whom the award is invoked was not given proper notice description of the measure and certifying that: (a) the Court has of the appointment of the arbitrator or of the arbitration jurisdiction as to the substance of the matter; and (b) the judg- proceedings or was otherwise unable to present his case; ment is enforceable in the Member State of origin. (iii) the award deals with a difference not contemplated b) Brussels II Bis Regulation: The decisions that can by or not falling within the terms of the submission to be enforced are those that comply with the definition arbitration, or it contains decisions on matters beyond the provided in Article 2 and which fall within its scope, which scope of the submission to arbitration, provided that, if the mainly refer to any decision regarding divorce or nullity of decisions on matters submitted to arbitration can be sepa- the marriage as well as any ruling on the parental responsi- rated from those not so submitted, that part of the award bility of the parents. It also expressly recognises the possi- which contains decisions on matters submitted to arbitrability of partial enforcement. tion may be recognised and enforced; (iv) the composition With minor differences, it reproduces the requirements set of the arbitral authority or the arbitral procedure was not out in the Brussels I Bis Regulation. In this sense, it is in accordance with the agreement of the parties, or, failing noteworthy that in some cases a hearing of the affected such agreement, was not in accordance with the law of the party is required (a child or any third party that alleges that country where the arbitration took place; and (v) the award the judgment affects its parental responsibility), and the has not yet become binding on the parties, or has been set lack of this requirement is an additional reason to deny the aside or suspended by a competent authority of the country recognition of the foreign judgment. in which, or under the law of which, that award was made. In addition, in the case of a judgment given in default, the Pursuant to Article V, other grounds available for refusal party seeking recognition or applying for a declaration are: (vi) the subject matter was not arbitrable; and (vii) the of enforceability shall produce: (i) the original or certi- award is against public policy. These grounds have been fied true copy of the document which establishes that the strictly applied by Spanish Courts. defaulting party was served with the document instituting Lastly, it should be noted that enforcement of partial/ the proceedings or with an equivalent document; or (ii) interim awards is possible. any document indicating that the defendant has accepted g) Geneva Convention: This Convention is applicable to the judgment unequivocally. controversies arising from commercial international trans- c) Insolvency Regulation: The decisions that can be enforced actions. This Convention reflects the same first four are those that comply with the definition provided in Article requirements as set forth pursuant to Article V of the NY 2 and which fall within its scope, which mainly refer to any Convention. As stated in point b) above, enforcement of resolution issued in the context of an insolvency proceeding. partial/interim awards is possible.

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h) Washington Convention: This Convention is applicable same. As regards the difference between the legal effects of to arbitral awards issued by the International Centre for recognition and enforcement, please see question 2.5 above. Settlement of Investment Disputes (“ICSID”) regarding disputes concerning an investment between a Signatory 3.3 With reference to each of the specific regimes set State and a national of another Signatory State. It requires out in question 1.1, briefly explain the procedure for a copy of the award certified by the Secretary-General. recognising and enforcing a foreign judgment. Further, according to Article 54.1, each Contracting State shall recognise an award rendered pursuant to the For the European Regulations and the Washington Convention, Convention as binding and enforce the pecuniary obliga- no exequatur will be necessary and, therefore, enforcement proceed- tions imposed by that award within its territories as if it ings according to the procedural law applicable to the Member were a final judgment of a Court in that State. Therefore, State where the enforcement is made could commence automati- no exequatur will be needed. Also, enforcement of partial/ cally. These proceedings are described in question 2.6 above. interim awards is possible. This Convention does not As to the remaining judgments and arbitral awards, exequatur specify any cause of opposition. Therefore, only the will be mandatory, either by direct application of the Legal causes of opposition to enforcement as set forth under the Cooperation Act or by reference to the latter made by the Spanish Civil Procedure Act detailed in question 2.7 apply. Arbitration Act 60/2003, of 23 December, when stating in its i) 2005 Hague Convention: The Hague Convention of 30 Article 46 – with regard to foreign awards – that the exequatur June 2005 on choice of court agreements states that a judg- shall be governed by the NY Convention (save any more bene- ment given by a Court of a Contracting State designated in ficial conventions) and be conducted by the procedure set forth an exclusive choice of court agreement shall be recognised by the civil procedural framework for judgments rendered by and enforced in other Contracting States. The party seeking foreign Courts. recognition or enforcement shall produce: (i) a complete and certified copy of the judgment; (ii) the exclusive choice of court agreement, a certified copy thereof, or other evidence 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ of its existence; (iii) if the judgment was given by default, the enforcement of a judgment be challenged under the original or certified copy of a document establishing that special regime? When can such a challenge be made? the document which instituted the proceedings was notified to the defaulting party; (iv) documents establishing the In this sense, please note that no revision on the merits is judgment’s effect or enforceability in the State of origin; or possible for either the European Regulations or for the arbitra- (v) in the case of judicial settlements, a certificate of a Court tion conventions. Therefore, this answer has been provided in of the State of origin of its enforceability. question 3.1 above. According to the Convention, recognition or enforcement The challenge, where applicable, can be made at either the may be refused only if: (i) the agreement was null and void recognition stage or at the enforcement stage. under the law of the State of the chosen Court; (ii) a party lacked the capacity to conclude the agreement under the law of the requested State; (iii) the document which instituted the proceed- 42 Enforcement ings or an equivalent document, including the essential elements of the claim, was either not notified to the defendant in suffi- 4.1 Once a foreign judgment is recognised and cient time, not enabling him to arrange for his defence, or was enforced, what are the general methods of enforcement available to a judgment creditor? notified to the defendant in the requested State in a manner that is incompatible with the fundamental principles of the requested State concerning service of documents; (iv) the judgment was In order to enforce a judgment, the creditor may principally obtained by fraud in connection with a matter of procedure; (v) request the seizure of assets, although in some particular recognition or enforcement would be manifestly incompatible scenarios (for instance, when a company or the majority of with the public policy of the requested State; (vi) the judgment shares or participations are seized), a judicial receiver may be is inconsistent with a judgment given in the requested State in a also appointed and the creditor may also request to manage the dispute between the same parties; or (vii) the judgment is incon- assets seized in order to be repaid with their profits. sistent with an earlier judgment given in another State between In addition, when the legal requirements set forth in the Civil the same parties on the same cause of action, provided that the Procedure Act for these purposes are met, interim measures earlier judgment fulfils the conditions necessary for its recogni- could also be requested (for instance, interim freezing of assets, tion in the requested State. judicial intervention or receiver of assets, deposit of a movable Lastly, please note that the procedure for recognition, decla- asset, registration within the Property or Commercial Registry ration of enforceability or registration for enforcement, and the of the claim, prohibition to make any act of disposal concerning enforcement of the judgment, are governed by the law of the the assets or properties at stake, the suspension of the effects of requested State, which, in Spain, is the Legal Cooperation Act. corporate resolutions, etc.). The limitation period would be five years, as stated in question 2.13 above. 52 Other Matters

5.1 Have there been any noteworthy recent (in the 3.2 With reference to each of the specific regimes set last 12 months) legal developments in your jurisdiction out in question 1.1, does the regime specify a difference relevant to the recognition and enforcement of foreign between recognition and enforcement? If so, what is the judgments? Please provide a brief description. difference between the legal effect of recognition and enforcement? The exit of the UK from the EU implies significant changes in the regulatory framework for the recognition and enforcement The regimes for recognition and enforcement are essentially the in Spain of judgments issued by British Courts.

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On January 1, 2021, the United Kingdom ceased to be part will ratify the 2019 Hague Convention, which is not yet in force; of the EU and, consequently, as of then EU legislation for the or even enter into a bilateral treaty to regulate the recognition recognition and enforcement of foreign judgments is no longer and enforcement of judgments in a similar way to the Brussels I applicable. However, it is important to clarify that the Brussels Bis Regulation, which would certainly be the best option. I Bis Regulation will continue to apply to all UK resolutions issued pursuant to proceedings initiated before January 1, 2021. 5.2 Are there any particular tips you would give, or As regards judgments rendered pursuant to proceedings critical issues that you would flag, to clients seeking commenced on or after January 1, 2021, the regime applicable to recognise and enforce a foreign judgment in your to the recognition and enforcement of UK judgments in Spain jurisdiction? (and vice versa) will be the regime set out in the 2005 Hague Convention, which applies to judgments issued by a Court of a It is important to meet at the outset all the legal requirements Contracting State previously designated in an exclusive choice set out in the relevant regulation (including any minor proce- of court agreement. dural requirements as to the translation of the ruling into the It should be noted that there is currently no other bilateral or official language of the State where the judgment is enforced) multilateral treaty between the UK and the EU or Spain for the in order to avoid relevant delays in the processing of the case. recognition and enforcement of foreign resolutions and, there- Although, in principle, these proceedings should be relatively fore, where the Hague Convention is not applicable, domestic straightforward, depending upon the particularities of the case legislation must be applied (the Legal Cooperation Act). and the specific legal framework applicable, they can become Moreover, on April 8, 2020, the UK applied for admission more complex to solve. Another important hurdle is sometimes to the Lugano Convention, but as long as the UK’s adhesion is the lack of necessary knowledge of the process by the competent not accepted by the Member States, this Convention will not be Spanish Court, which can lead to significant delays. applicable. It is also possible that in the future the EU and UK

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Alfredo Guerrero is a Partner and head of Litigation and Arbitration in the Spanish office of King & Wood Mallesons (“KWM”). He specialises in the fields of Company, Civil and Criminal Law. He has been responsible for legal proceedings throughout his professional career, providing legal direction in all stages of the law process: Investigative Courts; Courts of First Instance; Company Courts; Contentious-Administrative Courts; Provincial Court of Appeals; National Court of Appeals; the Supreme Court; the Economic-Administrative Court; and the Constitutional Court. He has experience acting in complex commercial and financial disputes for a wide range of Spanish and international clients, including investment banks, international corporate groups, private equity funds and other financial institutions. Alfredo is recommended by Chambers and Partners and Best Lawyers as one of the best specialists in Dispute Resolution in Spain.

King & Wood Mallesons Tel: +34 91 426 0050 C/ Goya, 6, 4ª planta Email: [email protected] C.P. 28001, Madrid URL: www.kwm.com/en Spain

Fernando Badenes is a Senior Associate of the Litigation and Arbitration Department in the Spanish office of King & Wood Mallesons (“KWM”). He specialises in the fields of Company, Civil and Insolvency and Restructuring Law. He has wide expertise in all kind of Civil and Commercial Disputes between national and international major companies before either ordinary Courts or Arbitration Courts, including, amongst others, contractual liability, disputes between shareholders, directors’ liability, stock markets, unfair competition, private equity issues and construction agreements. He has also a depth of practice in proceedings under controversy in the application of Public and Private International Law. Finally, he also has wide expertise in advising on criminal proceedings regarding white-collar crimes committed by directors and shareholders. Fernando is recommended by Best Lawyers as one of the best specialists in Dispute Resolution and Insolvency & Restructuring in Spain.

King & Wood Mallesons Tel: +34 91 426 0050 C/ Goya, 6, 4ª planta Email: [email protected] C.P. 28001, Madrid URL: www.kwm.com/en Spain

Recognised as one of the world’s most innovative law firms, King & Wood with us since the office began. We are known for our expertise in a variety Mallesons offers a different perspective to commercial thinking and the client of practices including Litigation, M&A, Energy, Banking & Finance, PE, Real experience. With access to a global platform, a team of over 2,000 lawyers Estate, Employment and Tax. in 27 locations around the world works with clients to help them understand www.kwm.com/en local challenges, navigate through regional complexity, and to find commercial solutions that deliver a competitive advantage for our clients. Our long-standing team of Spanish lawyers help solve problems for which the standard response is not good enough. We always focus on our clients’ business objectives and devise tailored solutions that work based on a thorough knowledge of the law and the markets in which they operate. We provide partner-led, integrated advice to help our clients reach their commercial goals. Our robust track record of winning for our clients means that clients who have started with us, stay with us. Many in fact have been

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Finn Stenström

Glimstedt Amanda Moberg

12 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 The Enforcement Code (1981:774) (the “Enforcement Code”). All foreign jurisdictions. Questions 2.1, 2.6 and 2.7. States which are bound by Recast Brussels I, Brussels I, the Lugano The Act (2014:912) with Supplementary Provisions Concerning Court Convention, Regulation Jurisdiction and Recognition and International Execution of Certain No 805/2004 of 21 April Questions 2.1 and 2.7. Decisions (the “Supplementary Act”). 2004 creating a European Enforcement Order for uncontested claims, and the Hague Convention. The Ordinance (2014:1517) Regarding Recognition and Enforcement Same as the of Certain Foreign Decisions in the Area of Private Law (the Questions 2.1, 2.6 and 3.3. Supplementary Act. “Supplementary Ordinance”). Limited scope in relation to Denmark, Finland and The Act (1977:595) on Recognition and Enforcement of Nordic Norway (the Brussels and Questions 2.1 and 2.6. Judgments in the Area of Private Law (the “NEVL”). Lugano Conventions take precedence). The most important and commonly invoked regimes on recognition and enforcement are the Brussels Recast Regulation and the Lugano Convention. Please note that within the scope of this chapter, it is not possible to provide an exhaustive account of regimes applicable in specific areas, such as, for example, carriage on sea or land, etc.

22 General Regime judgment may subsequently be enforced as any other local judgment. The reasoning behind this “indirect enforceability” is that a party that exclusively has submitted to a foreign jurisdiction 2.1 Absent any applicable special regime, what is the shall not be denied seeking justice by invoking the foreign judg- legal framework under which a foreign judgment would ment (which due to the exclusive prorogation clause would be the be recognised and enforced in your jurisdiction? only judgment possible to obtain), but shall have the right to seek enforcement where such may be successful. According to the Enforcement Code, foreign judgments are not Under the Swedish Arbitration Act (1999:116), foreign arbi- recognised or enforceable in Sweden without basis in a conven- tral awards are, subject to having passed an exequatur procedure, tion, a treaty or in supra-national binding legislation. recognised and enforceable in Sweden. Sweden is a party to the However, certain exceptions to the above have been developed United Nations Convention on the Recognition and Enforcement in case law. Hence, the Supreme Court has stated that if the of Foreign Arbitral Awards 1958 (the “New York Convention”). parties through an exclusive prorogation agreement have decided that a dispute shall be subject to litigation in a foreign jurisdiction, a Swedish court that would be hindered from recognising the 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? foreign judgment as such, may, subject to, i.a., ordre public considerations, render a judgment based on the foreign judgment. The A judgment is a decision or order by a court recognised as

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having the authority to issue decisions or orders that may be 2.6 Briefly explain the procedure for recognising and enforced or which with binding effect establish rights and obli- enforcing a foreign judgment in your jurisdiction. gations or confer rights and obligations. In addition to judgments by courts, certain other orders, decisions or decrees might According to the Brussels Recast Regulation and NEVL, a be enforced. In this context, the most relevant example would foreign judgment shall be recognised without any need for be decisions based on summary proceedings by the Swedish exequatur proceedings. In relation to the Brussels Regulation, Enforcement Agency (Sw: Kronofogden). the Lugano Convention and the Hague Convention, a requirement for exequatur proceedings applies. Such proceedings will 2.3 What requirements (in form and substance) must be handled by the district court competent according to the a foreign judgment satisfy in order to be recognised and Supplementary Ordinance. The district courts are also compe- enforceable in your jurisdiction? tent to handle matters related to recognition in respect of other foreign judgments than accounted for above. The specific requirements for recognition and enforcement vary A foreign judgment invoked under the Brussels Regulation, but may include: proof of service of the summons to the coun- the Brussels Recast Regulation or the Lugano Convention may, terparty; a certified copy of the judgment; and a declaration of following application to the competent district court by an enforceability certificate. interested party, be subject to proceedings to ascertain whether In general, the foreign judgment must be enforceable in the grounds for recognising the judgment exist according to the country of its origin. relevant regime. Translation requirements, including requirements on certified If a declaration on enforcement by a Swedish court is required, translations, may apply. the procedure will, in general, include two stages. Firstly, a district court will make a formal review of the application ex parte. Secondly, either party may appeal the decision of the district court. 2.4 What (if any) connection to the jurisdiction is An arbitral award rendered by a tribunal having its seat required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? outside of Sweden must pass an exequatur proceeding in order to be enforced. Applications shall therefore be sent to the Svea Court of Appeal. Considering that recognition and enforcement of foreign judgments in Sweden is possible solely based on a convention, a treaty or supra-national binding legislation (please see ques- 2.7 On what grounds can recognition/enforcement of a tion 2.1 above), assessments related to principles regarding rele- judgment be challenged? When can such a challenge be made? vant connection would not normally be relevant. However, lack of connection which would be contrary to public policy or the absence of proper service or notice, which deprives The grounds on which recognition and enforcement of a judg- the defendant of possibilities to arrange for a defence, may be ment may be challenged and the time frames for such challenge mentioned as conditions which, on a general basis, may lead to a are, in general, found in the specific regime applicable. foreign judgment not being recognised or enforced. As mentioned above, judgments under the Brussels Recast Regulation are recognised and enforceable in Sweden without the need for exequatur proceedings. However, certain grounds 2.5 Is there a difference between recognition and for challenge are provided for in the regulation. enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? One ground for challenge, which is found in both the Brussels and Lugano rules, is that recognition might be rejected if such would be manifestly contrary to public policy (ordre public). In a Yes, there is a difference between recognition and enforcement. ruling from the Swedish Supreme Court (case no. Ö 3462-18), the Recognition means that a judgment has legal effect and may Supreme Court stated that the concept of ordre public is not static be enforced in the same way as a judgment or decision originally but varies over time. As a general remark, objections based on ordre obtained in Sweden. This means, for example, that the foreign public are rarely successful in Swedish courts. Another possible judgment prevents Swedish courts from adjudicating the same ground for challenging a judgment, found in both the Brussels and issue as determined in the foreign judgment. The aforemen- the Lugano rules, would be that the judgment is irreconcilable with tioned goes back to the principle that a question already deter- a prior judgment rendered in a dispute between the same parties. mined by a court may not be adjudicated again (res judicata). Apart from the grounds for challenge which may be found Enforcement is where the Swedish Enforcement Agency upon in the regime applicable, the respondent may object to enforce- application requires compliance with a judgment, decree or order. ment based on the provisions set forth in the Enforcement Code Even though a judgment has been recognised, it may be (please see question 2.5 above). possible to successfully object to its enforcement. Circumstances which may form the basis for such objection may include, e.g., the fact that the claim has already been settled in full or that the claim 2.8 What, if any, is the relevant legal framework has been barred from enforcement due to the expiry of the limi- applicable to recognising and enforcing foreign judgments relating to specific subject matters? tation period. An objection to enforcement shall be submitted to the Swedish Enforcement Agency. Should, however, an objection submitted to the Swedish Enforcement Agency concern matters Sweden has entered into treaties and conventions with other related to refusal of recognition, the Swedish Enforcement countries on specific areas which allow for reciprocal recogni- Agency shall refer such objections to the relevant district court tion and enforcement of foreign judgments; such as, for example: competent to try such objection (please see question 3.2). ■ International road transportation (the International To conclude: prior to a foreign judgment being enforceable, Carriage of Goods by Road Act and CMR). it must be recognised. A recognised foreign judgment is not ■ International railroad transportation (the Railways Traffic necessarily enforceable. Act and COTIF).

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■ Liability for oil damages (the Oil Pollution Damage Funds 2.13 What is the relevant limitation period to recognise Act and the Convention of an International Fund). and enforce a foreign judgment? ■ The Act (1996:519) on the Enforcement of Judgments and Decisions rendered under the United Nations Convention Firstly, it should be noted that limitation periods are, in general, on the Law of the Sea of 10 December 1982. considered to be a substantive matter. Hence, Swedish courts may, based on international private law rules and principles, 2.9 What is your court’s approach to recognition and come to apply foreign law when assessing the limitation period enforcement of a foreign judgment when there is: (a) a applicable; presumably the law applied in the foreign judgment conflicting local judgment between the parties relating will be applied also to determine the relevant limitation period. to the same issue; or (b) local proceedings pending To the extent Swedish substantive law would be applied, the between the parties? following may be noted. The general limitation period in Sweden is 10 years according An earlier conflicting Swedish judgment would lead to the foreign to the Limitations Act (SFS 1981:130). For claims against judgment not being recognised in Sweden. Such hindrance for consumers, the main rule is that a limitation period of three recognition presupposes that the issue is related to the same parties. years applies. Limitation periods set forth in legislation specific The assessment as to whether the local judgment concerns to each sector will take precedence over the general limitation the same issue shall, according to the Swedish Code of Judicial period set forth in the Limitations Act. Procedure, as a starting point be considered by the court on its The limitation period will be counted from the day the claim own motion. However, in general, a party that objects to recog- arose. There are several possibilities to have the limitation nition due to res judicata needs to establish the circumstances that period extended. A judgment rendered will lead to a new limi- support the position that recognition should be denied. tation period, which runs from the day of the publication of a Later local proceedings between the parties concerning an issue judgment or a final decision, or from the day on which the legal already determined in a foreign judgment by a competent court proceedings are concluded in another way. would, in order to avoid conflicting judgments, likely result in Notwithstanding the fact that a claim is barred from execu- proceedings being stayed. Following a determination that the issue tion as from the expiry of the limitation period, such claim may subject to local proceedings concerns the same issue already resolved be included in a set-off (in situations where set-off is permitted). by the foreign competent court, the foreign judgment would, due to res judicata, constitute an impediment for further proceedings. 32 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 conflicting local law or prior judgment on the same or a set out in question 1.1, what requirements (in form similar issue, but between different parties? and substance) must the judgment satisfy in order to be recognised and enforceable under the respective A conflicting substantive local law would, as a starting point, not regime? hinder recognition or execution of a foreign judgment rendered by a competent court. That said, questions may, depending on the According to Brussels I, the party applying for a declaration specific law contravened by the foreign judgment, arise as to whether of enforcement shall, along with the application, submit the the foreign judgment would be contrary to ordre public. However, an following documents: assessment that an impediment exists for such reason would require 1. An address or details of a representative for service of exceptional circumstances (please see question 2.7 above). process of the counterparty. A prior judgment which concerns different parties will not have 2. A copy of the judgment which satisfies the conditions an impact on recognition or enforcement, since the concept of res necessary to establish its authenticity. judicata is limited to prior judgments involving the same parties. 3. A certificate from the court where the foreign judgment was issued. 2.11 What is your court’s approach to recognition and 4. If the party seeking enforcement is represented by a repre- enforcement of a foreign judgment that purports to sentative: a power of attorney and relevant supporting apply the law of your country? documents proving the authority of the representative. In relation to a declaration of enforcement under the Lugano Provided that the foreign judgment is not contrary to ordre public Convention, the party applying for a declaration of enforce- or, depending on the legal framework applicable, other material ment must also submit a document showing that the judgment mandatory requirements, the recognition of a foreign judgment is enforceable in its state of origin and a document showing that is not dependent on the foreign court having applied the law in the judgment has been served on the counterparty. line with Swedish practice and legal sources, and matters related If required, the Swedish court may request that the applicant to substance would not be further investigated. submit an authorised translation of the documents. When a Swedish court has decided that a foreign judgment is enforceable in Sweden, or if such a declaration of enforcea- 2.12 Are there any differences in the rules and bility is not required (please see question 2.6 above), the foreign procedure of recognition and enforcement between judgment may as mentioned be enforced by the assistance of the various states/regions/provinces in your country? the Swedish Enforcement Agency. According to the Brussels Please explain. Recast Regulation, the party seeking enforcement shall, along with the application for enforcement, submit certain documents There are no differences since the rules and procedure of recog- and certificates to the Enforcement Agency. nition and enforcement are uniform throughout Sweden.

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3.2 With reference to each of the specific regimes set application is based. An unfulfilled obligation to make payment out in question 1.1, does the regime specify a difference may result in compulsory collection of funds. Movable prop- between recognition and enforcement? If so, what is the erty and real property may be subject to attachment orders and difference between the legal effect of recognition and sold. Further actions that may be taken include, amongst others, enforcement? attachment of earnings.

Recognition means that a judgment or decision has legal effect 52 Other Matters and may be enforced in the same way as a judgment or decision originally obtained in Sweden. Enforcement is handled through 5.1 Have there been any noteworthy recent (in the the Swedish Enforcement Agency (please see question 2.5). last 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 recognising and enforcing a foreign judgment. There have been no major developments or changes in conditions apart from the consequences of Brexit. Where needed, applications for a declaration on enforceability are generally submitted to the competent district court. The 5.2 Are there any particular tips you would give, or district court which is competent to handle such applications critical issues that you would flag, to clients seeking is the district court where the counterparty is domiciled. If the to recognise and enforce a foreign judgment in your counterparty is domiciled outside of Sweden, the competent jurisdiction? district court is the District Court of Nacka (please see question 2.6). In order to ensure that an enforcement application is handled quickly, it is recommendable to clarify the regime under which 3.4 With reference to each of the specific regimes set enforcement is sought. Naturally, it is also important to ensure out in question 1.1, on what grounds can recognition/ that all of the required documents are submitted. If the applica- enforcement of a judgment be challenged under the tion is incomplete or if there are ambiguities, the Enforcement special regime? When can such a challenge be made? Agency will demand clarifications or complementary information, and this will lead to a delay. The grounds to refuse recognition and enforcement with the If possible, it is also recommendable to provide information most practical implications are summarised in the list below: on assets held by the party against whom enforcement is sought. (i) The judgment is contrary to ordre public. The Enforcement Agency will conduct investigations in respect (ii) The judgment is given in default of appearance and mate- of the respondent’s assets and economic status. However, infor- rial documents were not served correctly or in sufficient mation on the respondent’s assets provided in the application time to arrange for a proper defence. is often important to ensure that an enforcement application is (iii) The issue has already been determined in a prior judgment handled quickly. between the same parties. In cases where there is a risk that the opposing party by (iv) The judgment has been rendered in contradiction with removing property, or other action, may try to evade payment of exclusive forum rules. their debt, the Enforcement Agency may refrain from commu- Please note, however, that several regimes do not allow such nicating an application for enforcement with the respondent wide scope of possible objections as set forth at (i)–(iv). prior to execution. In order for the Enforcement Agency to decide to proceed in such manner, the circumstances which may 42 Enforcement allow the Enforcement Agency to refrain from communicating to the opposing party need to be concretised by the applicant.

4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor?

The judgment creditor may submit an application to the Swedish Enforcement Agency. The Enforcement Agency may take different actions depending on the judgment upon which the

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Finn Stenström is a partner at Glimstedt. He specialises in dispute resolution. Finn has substantial experience from a wide range of industries and assists clients with legal issues which span a broad commercial spectrum including corporate law, agency and distribution, various forms of cooperation agreements, licensing, IT agreements, supply and R&D. His work includes strategic planning, preparation and negotiation of contracts and giving general advice in these areas. He is a member of the Swedish Bar Association.

Glimstedt Tel: +46 720 02 80 98 Gamla Torget 3 Email: [email protected] 600 42 Norrköping URL: www.glimstedt.se Sweden

Amanda Moberg is an associate and joined Glimstedt in 2018. She has experience in advising clients on a wide range of the firm’s practice areas, with a particular focus on dispute resolution and corporate commercial matters. Amanda frequently represents clients before the Swedish courts.

Glimstedt Tel: +46 760 51 34 58 Gamla Torget 3 Email: [email protected] 600 42 Norrköping URL: www.glimstedt.se Sweden

Glimstedt is a law firm with specialists in all fields of business law. Most of our clients are large and medium-sized Swedish and international companies. We are able to supply legal, strategic and commercial advice tailor-made for the situation at hand at short notice. Our advice is always based on solid commercial understanding and thorough legal knowledge. In-depth industry knowledge and experience means that we are able to provide strategic advice and take advantage of early-stage opportunities which strengthen our clients’ positions in the short and long term. We have 14 offices in Sweden and three offices in the Baltic region and collaborate seamlessly across office boundaries. www.glimstedt.se

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Switzerland Switzerland

Rocco Rondi

Guillaume Fatio

BMG Avocats Isabelle Baroz-Kuffer

12 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 Convention between the Swiss Confederation and the German Reich Switzerland and on the Recognition and Enforcement of Judgments and Arbitral Section 3. Germany. Awards of 2 November 1929. Convention between Switzerland and Austria on the Recognition and Enforcement of Court Decisions of 15 March 1927 and 16 December Switzerland and Austria. Section 3. 1960. Convention between Switzerland and Belgium on the Recognition and Switzerland and Belgium. Section 3. Enforcement of Judgments and Arbitral Awards of 29 April 1959. Treaty between Switzerland and Spain on the Reciprocal Enforcement of Judgments or Decrees in Civil or Commercial Matters of 19 Switzerland and Spain. Section 3. November 1896. Convention between Switzerland and Italy on the Recognition and Switzerland and Italy. Section 3. Enforcement of Judgments of 3 January 1933. Convention between Switzerland and the Principality of Liechtenstein Switzerland and on the Recognition and Enforcement of Judgments and Arbitral Section 3. Liechtenstein. Awards in Civil Matters of 25 April 1968. Convention between Switzerland and Sweden on the Recognition and Switzerland and Sweden. Section 3. Enforcement of Judgments and Arbitral Awards of 15 January 1936. Convention between Switzerland and the Czechoslovak Republic on Switzerland, Slovakia and Section 3. the Recognition and Enforcement of Judgments of 21 December 1926. the Czech Republic. Agreement between Switzerland and the United States of America on Switzerland and the Section 3. the Enforcement of Maintenance Obligations of 31 August 2004. United States. Convention on Jurisdiction, Applicable Law, Recognition, Signatory countries to Enforcement and Cooperation in Respect of Parental Responsibility Section 3. the Convention. and Measures for the Protection of Children of 19 October 1996. Convention on the International Protection of Adults of 13 January Signatory countries to Section 3. 2000. the Convention. European Convention on Recognition and Enforcement of Decisions Signatory countries to concerning Custody of Children and on Restoration of Custody of Section 3. the Convention. Children of 20 May 1980.

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Applicable Law/Statutory Regime Relevant Jurisdiction(s) Corresponding Section Below Hague Convention on Recognition and Enforcement of Maintenance Signatory countries to Section 3. Decisions Towards Children of 15 April 1958. the Convention. Hague Convention on Recognition and Enforcement of Decisions Signatory countries to Section 3. Relating to Maintenance Obligations of 2 October 1973. the Convention. Hague Convention on the Recognition of Divorces and Legal Signatory countries to Section 3. Separations of 1 June 1970. the Convention. New York Convention on the Recognition and Enforcement of Signatory countries to Section 3. Foreign Arbitral Awards of 10 June 1958 (“New York Convention”). the Convention. Signatory countries to Protocol on Jurisdiction and the Recognition of Decisions Relating to the European Patent Section 3. the Right to Obtain a European Patent of 5 October 1973. Convention of 5 October 1973. Hague Convention on the Applicable Law and Recognition of Trusts Signatory countries to Section 3. of 1 July 1985. the Convention. Lugano Convention on Jurisdiction and the Recognition and Signatory countries to Enforcement of Judgments in Civil and Commercial Matters of 30 Section 3. the Convention. October 2007 (“LC”). Memorandum of Understanding between Switzerland and the Province Switzerland and the of Manitoba on the Recognition, Enforcement, Establishment and Section 3. Province of Manitoba. Modification of Maintenance Obligations of 5 June 2003. Memorandum of Understanding between Switzerland and the Province Switzerland and of Saskatchewan on the Recognition, Enforcement, Establishment and the Province of Section 3. Modification of Maintenance Obligations of 9 July 2003. Saskatchewan. Memorandum of Understanding between Switzerland and the Province Switzerland and the of British Columbia on the Recognition, Enforcement, Establishment Province of British Section 3. and Modification of Maintenance Obligations of 5 June 2013. Columbia. Memorandum of Understanding between Switzerland and the Province Switzerland and the of Alberta on the Recognition, Enforcement, Establishment and Section 3. Province of Alberta. Modification of Maintenance Obligations of 25 January 2016. The Federal Statute on Private International Law (“PILA”). Switzerland. Section 2. Debt Enforcement and Bankruptcy Act (“DEBA”). Switzerland. Section 2. Swiss Code of Civil Procedure (“SCCP”). Switzerland. Section 2.

22 General Regime 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? 2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Articles 25 to 28 PILA provide the requirements of form and substance enabling the recognition and enforcement of a foreign judgment. In a nutshell, a foreign decision is recognised in In Switzerland, the PILA governs the recognition and enforce- Switzerland if: ment of foreign judgments. Article 1(2) PILA provides for the ■ it is final or no longer subject to an ordinary way of appeal; application of special regimes through international treaties ■ the foreign judicial or administrative authorities had juris- regarding recognition and enforcement, the most important diction to render the decision (see question 2.4); and ones being the New York Convention and the LC. ■ there are no grounds to deny recognition (see question 2.7). With regard to the enforcement of foreign decisions, pecu- Special rules apply for the recognition of decisions on bank- niary debt is subject to the DEBA and specific performance is ruptcy and composition (Articles 166 to 168 PILA), as well as of subject to the SCCP. foreign decisions closely related to a bankruptcy decision recognised in Switzerland that concern revocatory actions and other 2.2 What constitutes a ‘judgment’ capable of acts detrimental to creditors (Article 174c PILA) and compo- recognition and enforcement in your jurisdiction? sition or similar proceeding approved by a foreign authority (Article 175 PILA). A judgment capable of recognition and enforcement in the Swiss jurisdiction is a final decision or a decision which is no longer 2.4 What (if any) connection to the jurisdiction is subject to an ordinary way of appeal (Article 25 PILA). required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment?

As mentioned in question 2.3 above, the foreign judicial or

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administrative authorities that issued the decision must have court starts with the filing of an application. The applicant must had jurisdiction for the decision to be recognised in Switzerland accompany his/her request with the following documents: (Article 25(a) PILA). ■ a complete and authentic copy of the decision (together In particular, Article 26 PILA provides that the competence with a translation of the relevant parts of the decision if the of foreign authorities is given: original language of the decision is not in the language of ■ according to the applicable provisions of the PILA (see list the Swiss court that will have to decide on enforceability); of provisions below) or, in the absence of such a provision, ■ a certificate stating that the decision is final or no longer if the defendant was domiciled in the State in which the subject to ordinary appeal; and decision was rendered; ■ in the case of a default judgment, an official document estab- ■ if, in matters relating to a pecuniary claim, (i) the parties lishing that the defaulting party has been summoned regu- have submitted to the jurisdiction of the authority which larly and has had the opportunity to present his/her case. made the decision by an agreement valid under this law, Usually, the applicant requests recognition and enforcement or (ii) the defendant proceeded on the merits of the case of the foreign decision at the same time. In this case, the compe- without challenging the jurisdiction; or tent authority to rule on the request for recognition or enforce- ■ whenever, in the case of a counterclaim, the authority that ment is the cantonal authority of the place where the foreign rendered the decision had jurisdiction over the principal decision is invoked (Article 29 PILA) – usually, the cantonal claim, provided that there is a connection between the two court of first instance. claims. However, sometimes in the context of a main action, the In order to assess whether the judicial or administrative author- claimant may need to rely on a foreign decision and will there- ities of the State had jurisdiction to render the decision, the PILA fore request, as a prerequisite, recognition in the context of his/ provides special rules that apply for the recognition of foreign her main action. In this case, the authority having jurisdiction decisions in relation to matrimonial property regimes (Article 58 to rule on the main action can also decide on the request for PILA), divorce or legal separation (Article 65 PILA), same-sex part- recognition (Article 29(3) PILA). nerships (called “registered partnerships” in Switzerland) (Article The court hears the party challenging the recognition and 65d PILA), acknowledgment of a child (Article 73 PILA), adop- enforcement in the proceedings and his/her arguments and tions (Article 78 PILA), the relationship between parents and child evidence (Article 29(2) PILA). (Article 84 PILA), guardianship, protection of adults and other The court will then render a decision on recognition and protective measures (Article 85 PILA), decisions, measures and enforcement. Concerning the enforcement of the foreign deci- documents in relation to, as well as rights deriving from, an inher- sion, the proceedings that will follow depend on whether the itance estate (Article 96 PILA), real property rights (Article 108 claim that forms the basis of the foreign decision is monetary PILA), securities held with an intermediary (Article 108d PILA), or not. infringement of intellectual property rights (Article 111 PILA), a ■ A foreign decision ruling on a monetary claim or secu- right pertaining to the law of obligations (Article 149 PILA), trusts rity provision, once recognised, must be followed by debt (Article 149e PILA) and company law (Article 165 PILA). collection proceedings according to the DEBA (via Article If the decision was rendered by an authority that lacked juris- 335(2) SCCP). In principle, those proceedings are summary diction, recognition will be denied by the Swiss authorities. proceedings, which are less expensive and quicker. It is worth noting that, in the light of the above, whenever a ■ A foreign decision ruling on a specific performance will foreign court has rendered a decision based on special jurisdic- generally be enforced directly by the court, at the same time tion that does not meet the abovementioned conditions, recog- as the recognition, through the SCCP (Articles 335–352). nition will be denied by the Swiss court. Swiss decisions on recognition and enforcement of foreign judgments are subject to appeal. 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal 2.7 On what grounds can recognition/enforcement of a effects of recognition and enforcement respectively? judgment be challenged? When can such a challenge be made? Under Swiss law, recognition of a foreign decision is the prerequisite for its enforcement. The enforcement of a foreign decision is The grounds for challenging are different for recognition and not possible without its prior recognition. In some cases, a party enforcement. will seek recognition without enforcement of a foreign decision; In terms of recognition, as a general principle, the foreign for instance, when the party needs to rely on the findings and decision may not be reviewed on its merits. Hence, the grounds declarations contained in the foreign judgment but seeks another for challenging the recognition of a foreign judgment are limited relief than the one or those contained in the foreign judgment. (Article 27 PILA). Recognition of a foreign decision must be As to their respective legal effects, they are as follows: denied in Switzerland if it is manifestly incompatible with Swiss ■ Recognition: once the foreign judgment is recognised, the public policy. It must also be denied if the challenging party res judicata effect applies and the parties cannot initiate new succeeds in establishing that: proceedings on the same facts and legal issues in Switzerland. ■ he/she was not duly summoned, either according to the ■ Enforcement: once the foreign judgment is enforced, the law of his/her domicile or according to the law of his/her initial claim, whether monetary or for specific perfor- habitual residence, unless he/she proceeded on the merits mance, should be extinguished and the claimant should without making a reservation; have obtained what he was seeking. ■ the decision was issued in violation of fundamental principles of Swiss procedural law, in particular that the said party was not given an opportunity to defend his/her case; or 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. ■ a dispute between the same parties and on the same subject matter had already been brought in Switzerland or The procedure for recognising a foreign decision before a Swiss

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had already been ruled there, or had previously been ruled by a request for enforcement, the outcome of the recognition on in a third State, provided that the latter decision fulfils proceedings will depend on which proceedings were initiated the conditions for its recognition in Switzerland. first. In cases where the pending Swiss proceedings started In terms of enforcement, the party challenging enforce- before the proceedings that gave rise to the foreign judgment may raise several substantive grounds, which will depend ment, the court will deny recognition of the foreign judgment. on whether the foreign decision rules on a monetary claim or a Conversely, in cases where the foreign proceedings which led to specific performance: the foreign judgment started before the initiation of the Swiss ■ Grounds against enforcement of a foreign decision ruling pending proceedings, the court will recognise the foreign deci- on a monetary claim: sion and the Swiss pending proceedings will be dismissed. ■ the debt is statute-barred; ■ the debt has been reimbursed entirely or partially; 2.10 What is your court’s approach to recognition and ■ the parties agreed to proceed with instalment enforcement of a foreign judgment when there is a payments; or conflicting local law or prior judgment on the same or a ■ the creditor agreed to stay the reimbursement process similar issue, but between different parties? for some time. ■ Grounds against enforcement of a foreign decision ruling Since the foreign decision may not be reviewed on its merits (see on a specific performance claim: question 2.7 above), the Swiss court cannot deny the recognition ■ the specific performance has already been performed; and/or enforcement of a foreign judgment on the ground of a or conflict of law, as long as the foreign judgment is not manifestly ■ the specific performance is statute-barred. incompatible with Swiss public policy. When a prior judgment on the same or a similar issue but 2.8 What, if any, is the relevant legal framework between different parties already exists, it will not interfere with applicable to recognising and enforcing foreign the recognition and enforcement process as described in ques- judgments relating to specific subject matters? tions 2.6 and 2.7 above. Furthermore, such judgment will not prevent the court from recognising and enforcing the foreign As explained in question 2.4, the PILA provides specific rules judgment – only disputes between the same parties and on the regarding jurisdiction for recognition and enforcement of same subject matter are subject to denial (Article 27 PILA). foreign decisions in some specific law areas such as, amongst others, family law, inheritance law, property law, intellectual 2.11 What is your court’s approach to recognition and property law and company law. enforcement of a foreign judgment that purports to Moreover, special rules apply regarding recognition and apply the law of your country? enforcement of foreign decisions on bankruptcy and composition (Articles 166–175 PILA). Those rules apply not only with As described in question 2.10, a foreign decision may not be regard to jurisdiction, but also with regard to general conditions reviewed on its merits. Therefore, as long as the foreign judg- of recognition and enforcement. ment is not manifestly incompatible with Swiss public policy, Swiss A foreign bankruptcy decision is recognised in Switzerland at courts cannot deny recognition and/or enforcement on the ground the request of the foreign bankruptcy administration, the debtor that the foreign court may have applied Swiss law incorrectly. or a creditor, provided that (Article 166 PILA): ■ the decision is enforceable in the State in which it was rendered; 2.12 Are there any differences in the rules and ■ there are no grounds for denial within the meaning of procedure of recognition and enforcement between Article 27 PILA (see question 2.7 above); and the various states/regions/provinces in your country? Please explain. ■ the decision has been rendered: ■ in the State of the debtor’s domicile, or ■ in the State where the debtor’s centre of main inter- As set forth in the previous questions, the PILA, DEBA and ests is situated, if the debtor was not domiciled in SCCP are the basis of recognition and enforcement of foreign Switzerland at the time of the commencement of the decisions in Switzerland. Since those rules are federal law, there foreign proceedings. are no major differences in the rules and procedure of recogni- Specific rules apply whenever the debtor has a branch in tion and enforcement in the various Swiss cantons. Switzerland (Article 166(2)(3) PILA). The only differences pertain to the organisation of the courts and debt enforcement authorities, which differs in every canton, and the languages of the proceedings, which can be French, 2.9 What is your court’s approach to recognition and German, Italian and Romansh depending on where the proceed- enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating ings are initiated. to the same issue; or (b) local proceedings pending between the parties? 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? As set forth in question 2.7, the recognition of a foreign judgment in a dispute between the same parties and on the same There is no limitation period as such for the recognition and subject matter, which had already been brought in Switzerland enforcement in Switzerland of a foreign judgment. or had already been ruled there, or had previously been ruled in However, Swiss law provides that a claim recognised by a a third State, will be denied. judgment is statute-barred after 10 years (Article 137(2) Swiss If proceedings in Switzerland are pending between the same Code of Obligations (“SCO”)). Therefore, should Swiss law parties and on the same subject matter at the time a party initi- apply to the claim that is the subject of the foreign judgment ates recognition proceedings, whether or not accompanied to be recognised and/or enforced in Switzerland, a statute of

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limitation of 10 years will apply. Hence, should a party request proceedings. So, the creditor may directly file for enforcement the recognition and/or enforcement of the foreign judgment without having the foreign decision formally recognised in after this 10-year period, the court will reject the request on the prior and separate proceedings. That said, a party interested in ground that the claim is time-barred. obtaining a formal recognition in Switzerland can file an application in this respect. 32 Special Enforcement Regimes Applicable to Judgments from Certain Countries 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to Under the LC, the party seeking the declaration of enforce- be recognised and enforceable under the respective ment (Article 38 LC) must file an application, together with the regime? following documents (Articles 41, 53 and 54 LC): ■ a certified copy of the judgment; and Although technically still valid and applicable, all the bilat- ■ a certificate of enforceability issued by the foreign court eral treaties mentioned under question 1.1 currently have a very or authority using the standard form set out in Annex V of limited scope in practice. Indeed, they have been replaced by the LC or any equivalent document. more recent multilateral conventions, such as the LC, and thus It is possible that the Swiss court may require translations of lack relevancy. Therefore, in this chapter we will focus on the LC. the documents (Article 55(2) LC). This may be the case if the Under the LC, a judgment must be final and binding in order original language of the judgment and of the certificate is not to be recognised and enforced. Furthermore, no ground for in the language of the Swiss court that will have to decide on denial exists. The system put in place by the LC favours recogni- enforceability. tion/enforcement of foreign judgments, since the first instance The proceedings to declare a foreign judgment enforceable proceedings are not contradictory and grounds for denial can under the LC are not adversarial, unlike the PILA proceedings. only be raised and must only be examined within the frame- Once the formalities stated above are completed, the judgment work of appeal proceedings. Such proceedings can be initi- is immediately declared enforceable (Article 41 LC). ated by the party against which the judgment to be recognised is rendered, upon service of the Swiss decision recognising it 3.4 With reference to each of the specific regimes set (Article 43 LC). Articles 34 and 35 LC provide for the grounds out in question 1.1, on what grounds can recognition/ for denial of recognition that can be invoked within the frame- enforcement of a judgment be challenged under the work of appeal proceedings, in particular: special regime? When can such a challenge be made? ■ recognition is manifestly contrary to Swiss public policy; ■ recognition is irreconcilable with a judgment rendered in a It is only after the end of the first instance proceedings that dispute between the same parties in Switzerland; the Swiss judgment declaring enforceability is served to the ■ recognition is irreconcilable with an earlier judgment opposing party (Article 42(1) LC); such party will then be enti- rendered in another State involving the same cause of action tled to lodge an appeal against the declaration of enforceability and between the same parties, provided that the earlier (Article 43 LC). judgment fulfils the conditions necessary for its recognition As for the merits of the case, Article 45(2) LC provides that in Switzerland; and the foreign judgment cannot be reviewed in its substance at this ■ the judgment to be recognised has been rendered in viola- stage. The grounds to deny the declaration of enforceability have tion of mandatory or exclusive jurisdiction under sections been presented at question 3.1 and are the same as the grounds 3 (insurance), 4 (consumer contracts) and 6 (rules on exclu- for denying recognition (see Articles 45(1), 34 and 35 LC). sive jurisdiction) Title II LC. Aside from this limited scope, Swiss courts cannot review the jurisdiction of a court in another Member State. 42 Enforcement Finally, pursuant to Article 34(2) CL, a judgment issued in default of appearance will not be recognised if the defendant was 4.1 Once a foreign judgment is recognised and not served with the document that instituted the proceedings or enforced, what are the general methods of enforcement with an equivalent document in sufficient time and in such a way available to a judgment creditor? as to enable him/her to arrange for his/her defence. It is worth mentioning that in relation to this provision, Switzerland made a The enforcement methods available to the judgment creditor reservation: even in an instance where the defendant could have depend on the qualification of its claim, whether it is of a pecu- challenged the judgment in default but did not do it, Switzerland niary nature or if it is a non-pecuniary claim. will deny recognition, contrary to the wording of Article 34(2) in As already indicated, enforcement of pecuniary claims under fine CL. So, in this respect, Switzerland offers increased protection Swiss law are governed by the DEBA, whereas the execution of to defaulting parties. non-pecuniary claims is governed by the specific rules contained in the SCCP. Pecuniary claims are enforced in Switzerland through debt 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference collection proceedings, which can lead to either the seizure of between recognition and enforcement? If so, what is the assets of the debtor (in case of an individual) or bankruptcy (in case difference between the legal effect of recognition and of companies). The main steps of these proceedings are as follows: enforcement? 1) filing of a request to initiate debt collection proceedings with the competent Debt Collection Office (“DCO”), i.e. Under the LC (Article 33), recognition is automatic in all an administrative, non-judicial body. No proof of claim Member States and thus does not necessarily require any specific will be provided at this stage;

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2) issuance of a summons to pay by the DCO and formal ■ the conversion of the specific performance into a pecu- service on the debtor; niary performance (if actual performance is actually 3) upon service, the debtor can raise an oral or written oppo- impossible). sition against the summons to pay, generally within 10 The requesting party can also apply for (ex parte) interim days from service, without providing any specific ground measures, to protect his/her rights and secure execution of the or particular evidence; and foreign judgment, to the extent the conditions are met. 4) to the extent an opposition is raised, the creditor having initiated debt collection proceedings will seek the inter- 52 Other Matters vention of the competent judge to have the opposition lifted. If the creditor has a final and enforceable judgment 5.1 Have there been any noteworthy recent (in the against the debtor, the judge will lift the opposition. It last 12 months) legal developments in your jurisdiction must be noted that the enforceability of the foreign judg- relevant to the recognition and enforcement of foreign ment will be assessed by the judge at this stage – there is no judgments? Please provide a brief description. need for a creditor to have the foreign judgment declared enforceable before starting debt collection proceedings The UK is no longer treated as a contracting party to the LC. It in Switzerland. If the debtor does not raise any opposi- is unclear if recognition and enforcement in Switzerland of UK tion against the summons to pay (or does it too late), such judgments that were issued before 1 January 2021 will still be declaration of enforceability may not even be necessary, governed by the LC, but UK judgments that were issued after the debt collection proceedings continuing and allowing that date will be subject to the rules of the PILA, until the UK the DCO to proceed with seizures of assets or commina- joins the LC as an independent contracting party. Notably, this tion of bankruptcy. affects the enforceability of English worldwide freezing orders To the extent conditions are met, the creditor willing to in Switzerland. enforce a foreign judgment in Switzerland can also file an application for ex parte attachment proceedings, aiming to attach assets of the debtor located in Switzerland. Since the attach- 5.2 Are there any particular tips you would give, or ment is an ex parte interim measure, it will need to be vali- critical issues that you would flag, to clients seeking dated through the commencement of ordinary debt collection to recognise and enforce a foreign judgment in your jurisdiction? proceedings as described above. In order for a creditor to be able to file a successful attachment request, the creditor must establish, prima facie, the following: As stressed earlier on in this chapter, a party that knows that a 1) the existence of a due, unsecured claim (should not be an judgment will eventually have to be recognised in Switzerland issue if the claim stems from a foreign final judgment); must be very diligent and ascertain that basic procedural prin- 2) that he/she holds an enforceable judgment (or in case no ciples (right to be heard, proper service of claim and summons judgment exists, there is another ground for attachment to appear) are complied with in the foreign proceedings in order pursuant to the DEBA; for example, if the debtor has no to avoid any grounds for denial of recognition and enforcement residence in Switzerland, a sufficient link of the claim with at a later stage. Switzerland must exist); and In particular, proper service is a key issue for enforcement. 3) the existence of assets belonging to the debtor located in If transnational, such service must be compliant with the rules Switzerland (for instance, bank accounts or other assets). of the Hague Convention on the Service Abroad of Judicial To the extent an attachment request is based on a judgment and Extrajudicial Documents in Civil or Commercial Matters issued by a court of a Member State of the LC, the declaration of of 15 November 1965, if applicable. In this respect, it must be enforceability will be issued at the same time as the attachment noted that Switzerland has made several reservations and does order. For non-LC judgments, the abovementioned conditions not accept service on its territory very easily (translation of for enforceability will be established at a later stage, during the documents in a national language can be required, no service debt collection proceedings, along with the obtainment of the through diplomatic representations in Switzerland, no direct declaration of enforceability. postal service from abroad). The use of contractually appointed The enforcement of foreign judgments for non-pecuniary process agents for claim notification might also be a cause for claims, i.e. judgments requiring specific performance, is denial of recognition and enforcement of a foreign judgment in governed by the SCCP. The enforcement of such judgments Switzerland. involves an obligation to do, to abstain or to tolerate (Article The recognition and enforcement of foreign interim measures 343(1) SCCP). Therefore, a case-by-case analysis is required. can give rise to delicate issues before Swiss courts. It is debat- Common means available to the judgment creditor to enforce a able whether such measures can be recognised and enforced specific performance are: pursuant to the PILA, whereas a clear basis for such a recog- ■ the threat of a criminal sanction (a fine for contempt of nition exists under the LC. However, very often it is easier to court pursuant to Article 292 Swiss Criminal Code), a fine apply in Switzerland for interim measures directly than trying of up to CHF 5,000 or financial penalty (of up to CHF to obtain the formal recognition and enforceability of foreign 1,000) for each day of non-performance; interim measures. In this case, the existence of interim meas- ■ the use of direct constraint; ures ordered abroad can help the applicant of similar measures ■ an order for surrogate measures (a third person must in Switzerland to convince the local judge of the necessity of perform the obligation in lieu of the debtor); and those measures and obtain them.

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Rocco Rondi assists the Swiss and international clients of BMG Avocats in relation to civil and criminal litigation, as well as in arbitration proceedings. He has extensive experience in complex cross-border litigation, in particular in commercial, banking and financial disputes and in enforcing foreign judgments and awards. Rocco further practises debt enforcement and bankruptcy law. He works in English, French, German and Italian.

BMG Avocats Tel: +41 22 839 49 49 Av. de Champel 8c Email: [email protected] PO Box 385, 1211 Geneva 12 URL: www.bmglaw.ch Switzerland

Guillaume Fatio heads BMG Avocats’ banking and finance law practice group. Besides providing advice to banks and other financial institutions, he litigates cases before commercial and criminal courts on their behalf. Guillaume is also a renowned expert in trade finance and commercial and private disputes (in particular, in estate matters) as well as in commercial law. He also dedicates a sizeable amount of his time to non-profit organisations and public interest foundations.

BMG Avocats Tel: +41 22 839 49 49 Av. de Champel 8c Email: [email protected] PO Box 385, 1211 Geneva 12 URL: www.bmglaw.ch Switzerland

Isabelle Baroz-Kuffer assists the Swiss and international clients of BMG Avocats in relation to civil and criminal litigation. Isabelle specialises in high-value, cross-border commercial and banking litigation, as well as asset-tracing and white-collar crime. Isabelle further practises enforcing foreign judgments and awards, debt enforcement and bankruptcy law. She also practises in large inheritance cases.

BMG Avocats Tel: +41 22 839 49 49 Av. de Champel 8c Email: [email protected] PO Box 385, 1211 Geneva 12 URL: www.bmglaw.ch Switzerland

BMG Avocats, a law firm specialising in business law, has offices in Geneva and Lausanne and employs about 25 lawyers and other fee-earners. BMG Avocats provides all the legal services needed to support the business operations of clients in various industrial and service sectors, in Switzerland and internationally. As far as dispute resolution is concerned, BMG Avocats assists its Swiss and international clients in relation to civil, administrative and criminal disputes, more particularly in the commercial, banking and finance fields, with extensive knowledge and experience in relation to complex cross-border disputes and enforcement of foreign judgments and awards. www.bmglaw.ch

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John J. Buckley, Jr.

Williams & Connolly LLP Ana C. Reyes

12 Country Finder of the United States. In some states, the recognition statute expressly provides that common law principles remain available to support recognition. See, e.g., Del. Code Ann. tit. 10, § 4807 1.1 Please set out the various regimes applicable to (West 2020) (“This chapter does not prevent the recognition recognising and enforcing judgments in your jurisdiction under principles of comity or otherwise of a foreign-country and the names of the countries to which such special regimes apply. judgment not within the scope of [the statute]”). The common law follows the guidelines established by the leading federal case on recognition and enforcement of foreign Applicable Law/ Relevant Corresponding judgments, Hilton v. Guyot, 159 U.S. 113 (1895). In Hilton, the Statutory Regime Jurisdiction(s) Section Below Supreme Court held that the recognition and enforcement of Sections 2, 4, and foreign judgments is primarily based on principles of interna- Common Law. All countries. 5. tional comity. Accordingly, “where there has been opportunity for a full and fair trial abroad before a court of competent jurisdic- Uniform Foreign All countries tion, conducting the trial upon regular proceedings, after due cita- Money Judgments (adopted by a Sections 2, 4, and tion or voluntary appearance of the defendant, and under a system Recognition Act majority of U.S. 5. of jurisprudence likely to secure an impartial administration of (1962). states). justice”, the merits of the case “should not, in an action brought in Uniform Foreign- this country upon the judgment, be tried afresh”. Id. at 202–03. All countries Country Money While state courts are courts of general jurisdiction, and are (adopted by a Sections 2, 4, and Judgments presumed to have subject matter jurisdiction over a case, the minority of U.S. 5. Recognition Act constitutional limitations on federal jurisdiction make federal states). (2005). courts “courts of limited jurisdiction”. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal courts hear recognition and enforcement actions under either diversity of citizen- 22 General Regime ship jurisdiction, or federal question jurisdiction, with diversity of citizenship jurisdiction being the most commonly invoked 2.1 Absent any applicable special regime, what is the jurisdictional ground. The diversity statute, 28 U.S.C. § 1332, legal framework under which a foreign judgment would provides that district courts have jurisdiction over all civil be recognised and enforced in your jurisdiction? actions where the matter in controversy exceeds $75,000 and the parties are diverse. The United States does not have a uniform federal law governing In diversity cases, federal courts apply the recognition and the recognition and enforcement of foreign judgments. Moreover, enforcement rules of the state in which the federal court sits. it is not a party to any treaty that deals with this subject. Accordingly, Sask. Mut. Ins. Co. v. CE Design, Ltd., 865 F.3d 537, 541 (7th Cir. the recognition and subsequent enforcement of foreign judgments 2017). This means that removal of an enforcement action from in the United States is primarily a matter of state statutory and state to federal court will ordinarily result in the federal court’s common law. application of the same state statute that would have been applied The statutory law of the states derives from two model in state court proceedings. Additionally, Rule 64 of the Federal recognition acts promulgated by the National Conference of Rules of Civil Procedure requires a federal court to apply state Commissioners on Uniform State Laws: the 1962 Uniform Money- law for remedies involving the seizure of property, which may Judgments Recognition Act; and the 2005 Uniform Foreign- be essential in an action seeking to collect on a foreign money Country Money Judgments Recognition Act. The majority of judgment in a U.S. court. states and the District of Columbia have adopted some version of When a federal court’s subject matter jurisdiction is based on these model laws. New York, for example, has enacted the New a question of federal law, rather than diversity grounds, courts York Uniform Foreign Money-Judgments Recognition Act, codi- apply the applicable federal statute (if there is one) or federal fied in Article 53 of New York’s Civil Practice Law and Rules common law. For example, the United States has acceded (“CPLR”). These statutes apply only to judgments that grant or to the United Nations Convention on the Recognition and deny recovery of a sum of money. Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517 (“New States without a recognition act rely on the common law, York Convention”) and implemented its provisions in Chapter influenced by the Restatement (Third) of Foreign Relations Law 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 201–208.

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Section 203 provides that an action or proceeding falling under 2.3 What requirements (in form and substance) must the New York Convention “shall be deemed to arise under the a foreign judgment satisfy in order to be recognised and laws and treaties of the United States”, and the district courts of enforceable in your jurisdiction? the United States “shall have original jurisdiction over such an action”. 9 U.S.C. § 203. For the substantive requirements of a judgment, see supra ques- Federal courts have original jurisdiction over admiralty and tion 2.2. maritime suits pursuant to 28 U.S.C. § 1333. The Second Circuit To have a judgment recognised, Section 6 of the 2005 has held that, pursuant to this section, federal courts have juris- Recognition Act requires that the judgment holder file a court diction to enforce a judgment of a foreign non-admiralty court “if action against the debtor. This means that the holder may bring the claim underlying that judgment would be deemed maritime a plenary action or raise the matter as a counterclaim, cross-claim under the standards of U.S. law”. D’Amico Dry Ltd. v. Primera Mar. or affirmative defence in a pending proceeding. See, e.g., Tex. Civ. (Hellas) Ltd., 756 F.3d 151, 153 (2d Cir. 2014). Accordingly, even Prac. & Rem. Code Ann. § 36A.006 (West 2020) (recognition can if there is diversity jurisdiction, federal substantive law applies in be sought as an original matter by filing an action seeking recog- admiralty and maritime cases. Dantzler Inc. v. Intermarine, LLC, nition, or may be raised in a pending action by counterclaim, No. 20-931, 2020 WL 5545646, at *4 (E.D. La. Sept. 16, 2020). cross-claim or affirmative defence); Cal. Civ. Proc. Code § 1718(b) The federal court’s admiralty jurisdiction includes the authority (same); D.C. Code Ann. § 15-366(b) (West 2020) (same). to grant attachments of assets. In New York, CPLR § 5303 provides that a claim for recognition and enforcement of a foreign judgment may be brought in one of 2.2 What constitutes a ‘judgment’ capable of three ways: “an action on the judgment, [i.e., a complaint], a motion recognition and enforcement in your jurisdiction? for summary judgment in lieu of [a] complaint, or in a pending action by counterclaim, cross-claim or affirmative defense.” State statutes based on the Model Acts require that a judgment: CPLR § 5303. Failure to follow one of these procedures will result grant or deny recovery of a sum of money; be final and conclu- in denial of recognition and enforcement. Obra Pia Ltd. v. Seagrape sive between the parties; and be enforceable in the country in Investors, LLC, No. 19-CV-7840, 2020 WL 5751195 (S.D.N.Y. Sept. which the judgment was entered. See 2005 Recognition Act § 3(a) 25, 2020) (denying recognition for failure to follow CPLR proce- (2); 1962 Recognition Act § 3; Cal. Civ. Proc. Code § 1715(a)–(b) dures). The expedited summary procedure is favoured; CPLR § (West 2020). The finality requirement means that intermediate 3213 provides that “[w]hen an action is based upon an instrument and interlocutory rulings cannot be recognised. A judgment for the payment of money only or upon any judgment, the plain- may be final even though an appeal is pending. For example, tiff may serve with the summons a notice of motion for summary Article 53 of the CPLR, governing enforcement of foreign judg- judgment and the supporting papers in lieu of a complaint”. See ments, states that it “applies to any foreign country judgment Sea Trade Mar. Corp. v. Coutsodontis, 978 N.Y.S.2d 115, 117–18 (App. which is final, conclusive and enforceable where rendered even Div. 2013). If plaintiff’s motion for summary judgment in lieu of though an appeal therefrom is pending or it is subject to appeal”. a complaint is denied, “the moving and answering papers shall be CPLR § 5302 (McKinney 2020). deemed the complaint and answer, respectively, unless the court Judgments for taxes, fines or other penalties are excluded from orders otherwise”. CPLR § 3213. However, where the moving the recognition statutes. Additionally, under the 1962 Recognition and answering papers do not satisfactorily define the issues, formal Act, courts will not recognise and enforce judgments “[in] support pleadings must be served. Mirham v. Awad, 17 N.Y.S. 3d 473 (App. [of] matrimonial or family matters”. 1962 Recognition Act § 1(2). Div. 2015) (requiring formal pleadings where purported judgment, The 2005 Recognition Act expanded this exclusion to cover judg- translated from Arabic, was ambiguous as to the parties’ obliga- ments “for divorce, support, or maintenance, or other judgments tions). The holder of a foreign country judgment seeking summary rendered in connection with domestic relations”. 2005 Recognition relief under § 3213 must have the foreign judgment authenticated Act § 3(b)(3). However, non-monetary judgments, including matri- in accordance with an act of Congress or the statutes of New York, monial matters, may be recognised under principles of comity, or and filed within 90 days of the date of authentication. In addi- pursuant to specific statute law. The California foreign country tion: (1) when the judgment was rendered in a foreign language judgment recognition statute, for instance, expressly states that the holder must provide a certified English translation; (2) unless it does not apply to a “judgment for divorce, support, or mainte- obvious from the face of the judgment, the holder must submit the nance, or other judgment rendered in connection with domestic affidavit of an expert in the law of the jurisdiction that rendered relations”; however, a statutory savings clause allows such judg- the judgment establishing that the judgment is final, conclusive ments to be recognised “under principles of comity or otherwise”. and enforceable in that jurisdiction; (3) if the expert’s affidavit is Cal. Civ. Proc. Code §§ 1715(b)(3)(B), 1723. See also Akhmedov v. in a foreign language, there must be a certified English transla- Akhmedov, __N.Y.S.3d__, 189 A.D.3d 602 (App. Div. 2020) tion; and (4) if the expert cites a particular foreign law authority, (enforcing money judgment of English court in action to dissolve the translator must provide the court with copies of those author- marriage). The Restatement (Third) of Foreign Relations Law § ities and translated copies. See Sea Trade, 978 N.Y.S.2d 115; John R. 481(1) has a broader scope than the Model Acts, and would recog- Higgitt, Supplementary Practice Commentaries, CPLR § 3213, at nise foreign judgments “establishing or confirming the status of a 704–05 (Supp. 2020). person, or determining interests in property”. Section 2, cmt. 3 of the 2005 Recognition Act provides that a 2.4 What (if any) connection to the jurisdiction is foreign country judgment “need not take a particular form”, and required for your courts to accept jurisdiction for that “any competent government tribunal that issues such a ‘judg- recognition and enforcement of a foreign judgment? ment’ comes within the term ‘Court’ for purposes of this Act”. However, the judgment must be from an adjudicative body of the The court must have subject matter jurisdiction (of particular foreign country “and not the result of an alternative dispute mech- importance in federal court) and in most states there must also anism chosen by the parties”. Foreign arbitral awards, therefore, be personal jurisdiction, i.e., the non-resident judgment debtor are not covered by the Act, but are instead governed by federal law. must have “minimum contacts” with the state to satisfy due On the other hand, a judgment of a foreign court confirming or process. See Daimler AG v. Bauman, 571 U.S. 117 (2014); Int’l Shoe setting aside an arbitral award is covered by the Act. Co. v. Washington, 326 U.S. 310, 316 (1945).

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State personal jurisdiction law varies, and is somewhat contra- 2; Restatement (Second) Conflicts of Laws, Ch. 5, Topic 3, dictory in New York. In Lenchyshyn v. Pelko Electric, Inc., 723 N.Y.S. Introductory Note; Midbrook Flowerbulbs Holland B.V. v. Holland 2d 285, 291 (App. Div. 2001), the Fourth Department reasoned Am. Bulb Farms, Inc., 874 F.3d 604, 613 & n.9 (9th Cir. 2017) that, in an Article 53 proceeding, “the judgment creditor does not (applying Washington statute). seek any new relief against the judgment debtor, but instead merely Enforcement means “application of the legal procedures of asks the court to perform its ministerial function of recognising the state to ensure that the judgment debtor obeys the foreign the foreign country money judgment”. Accordingly, the court held country judgment”. Millbrook Flowerbulbs, 874 F.3d at 613 n.9. A that jurisdiction over the judgment debtor or its property was not a recognised judgment is generally enforceable in any U.S. court prerequisite to suit. Accord: Abu Dhabi Com. Bank PJSC v. Saad Trading, under the Constitution’s full faith and credit clause. See Cal. Contr. & Fin. Servs., 986 N.Y.S. 2d 454 (App. Div. 2014). However, Civ. Proc. Code § 1719(a) & (b). Once recognised, the judg- in AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A., 73 N.Y.S. 3d 1 (App. ment has res judicata effect. U.S. courts generally apply U.S. rules Div. 2018), the First Department limited Lenchyshyn to cases where of issue preclusion. See Servipronto De El Sal., S.A. v. McDonald’s the judgment debtor “does not contend that substantive grounds exist Corporation, __F. App’x __, No. 20-1503, 2020 WL 7051809 (2d to deny recognition to the foreign judgment”. Id. at 12. See Akhmedov Cir. Dec. 2, 2020) (applying Salvadorian principles of res judicata). v. Akhmedov, supra, 189 A.D.3d 602 (App. Div. 2020) (AlbaniaBEG However, at least one appellate court has suggested that “there not applicable where defence not colourable; action could proceed in is no consensus” on this issue. See United States v. Buruji Kashamu, absence of personal or in rem jurisdiction). 656 F.3d 679, 683 (7th Cir. 2011) (surveying law). Personal jurisdiction is a defence that can be waived. USI Syst. AG v. Gliklad, 111 N.Y.S. 3d. 270 (App. Div. 2019), leave to appeal 2.6 Briefly explain the procedure for recognising and denied, 35 N.Y.3d 910 (2020) (defendant’s assertion of counter- enforcing a foreign judgment in your jurisdiction. claims in an action to enforce a foreign judgment waived the lack of personal jurisdiction argument). Once converted into a state judgment, a foreign judgment is As already noted, the procedures in each state vary. Delaware generally given full faith and credit under Article IV, Section law is representative of the law of most states. It provides 1 of the U.S. Constitution, and is therefore enforceable as a that “[if] recognition of a foreign-country judgment is sought domestic judgment in any U.S. court. See, e.g., CPLR § 5303; Fla. as an original matter, the issue of recognition shall be raised Stat. Ann. § 55.604(5); Cal. Civ. Proc. Code § 1719. by filing an action seeking recognition of the foreign-country Parties seeking to enforce foreign arbitral awards in the U.S. judgment”. Del. Code Ann. tit. 10, § 4809(a). “If recognition will encounter differences in the procedural and jurisdictional of a foreign-country judgment is sought in a pending action, rules, which are governed by treaty (the New York Convention) the issue of recognition may be raised by counterclaim, cross- and statute (the FAA). In CBF Industria de Gusa S/A v. AMCI claim, or affirmative defense”. Id. § 4809(b). Once recognised, Holdings, Inc., 850 F.3d 58 (2d Cir. 2017), the Second Circuit clar- the foreign-country judgment is: “(1) [c]onclusive between the ified procedures for the recognition and enforcement of foreign parties to the same extent as the judgment of a sister state enti- arbitral awards. The court of appeals held that, under the New tled to full faith and credit in this State would be conclusive; and York Convention and the FAA, an action to convert a non-do- (2) [e]nforceable in the same manner and to the same extent as a mestic arbitral award into a judgment is a “recognition and judgment rendered in this State.” Id. § 4810. enforcement action” even though the FAA uses the term “confir- In all jurisdictions, if a party establishes that an appeal from a mation”. The party wishing to enforce the award, therefore, foreign-country judgment is pending, or will be taken, the court can bring a single action. See John J. Buckley, Jr., Procedural and “may stay any proceedings with regard to the foreign country Jurisdictional Aspects of Enforcing Foreign Arbitral Awards in the United judgment until: (1) the appeal is concluded; (2) the time for States, Legal Media Expert Guides (Sept. 20, 2018), https://www. appeal expires; or (3) the appellant has had sufficient time to expertguides.com/articles/procedural-and-jurisdictional-aspects-of- prosecute the appeal and has failed to do so”. See Tex. Civ. Prac. enforcing-foreign-arbitral-awards-in-the-united-states/arqmupny. & Rem. Code Ann. § 36A.008; Cal. Civ. Proc. Code § 1720; Del. Finally, the jurisdiction of United States courts over actions Code Ann. tit. 10, § 4806. against foreign sovereigns is governed by the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. § 1608 (2012). This 2.7 On what grounds can recognition/enforcement of a statute empowers federal courts to exercise personal jurisdiction judgment be challenged? When can such a challenge be over foreign sovereigns when one of its exceptions from juris- made? dictional immunity applies, the sovereign has been served with process in accordance with its provisions, and there is proper A judgment debtor cannot file a challenge unless the judgment venue. See, e.g.: Crystallex Int’l Corp. v. Bolivarian Rep. of Venez., 932 creditor has brought a recognition/enforcement action. Chevron F.3d 126 (3d Cir. 2019); Shapiro v. Rep. of Bol., 930 F.2d 1013, 1020 Corp. v. Naranjo, 667 F.3d 232, 240 (2d Cir. 2012) (“The Recognition (2d Cir. 1991) (“Under the FSIA . . . personal jurisdiction [over Act nowhere authorizes a court to declare a foreign judgment unen- a foreign sovereign] equals subject matter jurisdiction plus valid forceable on the preemptive suit of a putative judgment-debtor”). service of process”). Accord: Jill Stuart Asia LLC v. LG Fashion Corp., No. 18-CV-3786, 2019 WL 4450631, at *3 (S.D.N.Y. Sept. 17, 2019). 2.5 Is there a difference between recognition and All states recognise both mandatory and discretionary enforcement of judgments? If so, what are the legal grounds for non-recognition. These grounds, usually based on effects of recognition and enforcement respectively? state statutory law, can be asserted as affirmative defences in an action on the judgment, or by counterclaim or cross-claim in a A plaintiff seeking to enforce a foreign judgment within the pending proceeding between the parties. United States must, as a prerequisite to enforcement, first have New York law, for example, provides two mandatory grounds the judgment recognised by a domestic court. Recognition of a for non-recognition: (1) the judgment was “rendered under a foreign judgment means that “the forum court accepts the deter- system which does not provide impartial tribunals or procedures mination of legal rights and obligations made by the rendering compatible with the requirements of due process of law”; or (2) court in the foreign country”. 2005 Recognition Act § 4 cmt. “the foreign court did not have personal jurisdiction over the

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defendant”. CPLR § 5304. (However, under CPLR § 5303, a 2.8 What, if any, is the relevant legal framework defendant waives personal jurisdiction by voluntarily appearing applicable to recognising and enforcing foreign in the foreign court proceeding for purposes other than judgments relating to specific subject matters? contesting jurisdiction.) Personal jurisdiction of the foreign court and basic due process protections in that court are crucial As noted, the Uniform Acts apply only to money judgments, issues. Sung Hwan Co. v. Rite Aid Corp., 7 N.Y.3d 78 (N.Y. 2006). and do not apply to judgments for taxes, fines or other penal- New York law also provides eight discretionary grounds ties, or to judgments concerning domestic relations. However, pursuant to which a New York court “need not” recognise a judg- even non-monetary final judgments may be enforced, in appro- ment. CPLR § 5304(b). These discretionary grounds include: (1) priate circumstances, under the common law. See CPLR § 5307 lack of subject matter jurisdiction; (2) failure to receive notice of (expressly stating that Article 53 “does not prevent the recogni- the proceedings in the foreign court in sufficient time to allow for tion of a foreign country judgment in situations not covered by defences; (3) the judgment was obtained by fraud; (4) the judgment this article”). (or the cause of action or claim for relief) is repugnant to the public Several categories of judgments are enforceable under particular policy of the state; (5) the judgment conflicts with another final federal statutes and treaties. For instance, the New York Convention and conclusive judgment; (6) the proceeding in the foreign country and the Inter-American Convention on the Recognition and was in violation of an agreement between the parties establishing a Enforcement of Foreign Arbitral Awards (Panama Convention), as process other than a proceeding in a foreign court; (7) in the case of implemented by Chapters 2 and 3 of the FAA, require that U.S. jurisdiction based on personal service, the foreign court was a seri- courts honour the agreement to arbitrate and the resulting award, ously inconvenient forum for the trial of the action; or (8) the cause with certain exceptions. Parties seeking enforcement of arbitration of action resulted in a defamation judgment obtained in a jurisdic- awards in U.S. courts must demonstrate both personal and subject tion outside the United States, unless the U.S. court determines that matter jurisdiction. See supra question 2.4. Article V of the New the defamation law applied in the foreign court “provided at least York Convention and Article 5 of the Panama Convention set forth as much protection for freedom of speech and press” as would be the grounds on which a domestic court may refuse the recognition provided by the U.S. and New York constitutions. CPLR § 5304. of an arbitral award. The grounds for non-recognition are substan- While the majority of states have adopted versions of the tially the same under both treaties. U.S. courts have held that, in Recognition Act, a few states have no governing statute and look arbitration cases, it may refuse to recognise a foreign court’s deci- to the Restatement (Third) of Foreign Relations Law, and prin- sion if it “clearly misinterprets the [] Convention, contravenes the ciples of the common law set out in Hilton v. Guyot. See Societe Convention’s fundamental premises or objectives, or fails to meet Damenagement et de Gestion de Labri Nautique v. Marine Travelift Inc., a minimum standard of reasonableness”. Cerner Middle E. Ltd. v. 324 F. Supp. 3d 1004 (E.D. Wis. 2018) (applying principles of the iCapital, LLC, 939 F.3d 1016 (9th Cir. 2019) (alteration in original) Restatement in the absence of a Wisconsin state statute). The (quoting Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir. 2009)). Restatement (Third) of Foreign Relations Law § 482 lists seven The U.S. is a party to the Convention on the Settlement of grounds upon which a court may refuse to recognise an other- Investment Disputes Between States and Nationals of Other States wise valid foreign judgment, including jurisdictional defects, (“ICSID”), which establishes the legal framework for the settle- public policy concerns, fraud, an agreement to submit the ment of investment disputes between foreign investors and sover- dispute to another forum, and conflict with another final judg- eign states that have consented to international arbitration pursuant ment entitled to recognition. States also look to the Restatement to the Convention. Article 54 imposes on contracting states the (Second) of Conflict of Laws § 98 cmt. g (Am. Law Inst. 1971) obligation to enforce an award issued in an ICSID arbitration “as which similarly enumerates a number of defences. See Derr v. if it were a final judgment of a court in that State”. Courts have Swarek, 766 F.3d 430 (5th Cir. 2014) (applying Mississippi law adopted varying approaches to the recognition and enforcement which follows the Restatement (Second) of Conflicts of Law). of ICSID awards. Some courts permit entry of a judgment on an State recognition statutes may differ on key issues. For example, ICSID award through ex parte proceedings. Other courts require the Model Recognition Acts and the Restatement do not require award-creditors to pursue a plenary action in compliance with the reciprocity. Nonetheless, Florida, Idaho, Maine, North Carolina, FSIA’s personal jurisdiction, service and venue requirements. See Ohio and Texas make reciprocity a discretionary ground for Micula v. Gov’t of Rom., 714 F. App’x 18 (2d Cir. 2017); Mobil Cerro recognition, while Arizona, Georgia and Massachusetts make it Negro, Ltd. v. Bolivarian Rep. of Venez., 863 F.3d 96 (2d Cir. 2017). a mandatory ground. See, e.g., Mass. Gen. Laws ch. 235, § 23A The Securing of the Protection of our Enduring and (2020) (requiring reciprocity). There are also disputes over the law Established Constitutional Heritage Act (“SPEECH”), 28 applicable to questions concerning the foreign court’s personal U.S.C. §§ 4101–4105, controls domestic actions that seek recog- jurisdiction. Some courts look to the law of the rendering court, nition of foreign defamation judgments. some look to the law of the enforcing court, and some look to Judgments concerning domestic relations, including child both the foreign jurisdiction and the United States. See generally custody, can be recognised and enforced pursuant to several statutes Tanya J. Monestier, Whose Law of Personal Jurisdiction? The Choice of and treaties, including: the International Support Enforcement Act, Law Problem in the Recognition of Foreign Judgments, 96 B.U.L. Rev. 1788 42 U.S.C. § 659a; the 1980 Hague Convention on the Civil Aspects (2016). Section 3(c) of the 2005 Recognition Act provides that “[a] of International Child Abduction; the 1993 Hague Convention party seeking recognition of a foreign-country judgment has the on Protection of Children and Cooperation in Respect of Inter burden of establishing that this [Act] applies to the foreign-country Country Adoption; the Uniform Child Custody Jurisdiction and judgment”. Once the threshold requirements have been met, the Enforcement Act; and the Uniform Interstate Family Support Act. burden shifts to the party opposing recognition to demonstrate a mandatory or discretionary ground for non-recognition. Id. § 2.9 What is your court’s approach to recognition and 4(d). In New York, however, “[a] plaintiff seeking enforcement enforcement of a foreign judgment when there is: (a) a of a foreign country judgment bears the burden of making a prima conflicting local judgment between the parties relating facie showing that the mandatory grounds for nonrecognition do to the same issue; or (b) local proceedings pending not exist”. Gemstar Can., Inc. v. George A. Fuller Co., 6 N.Y.S.3d 552, between the parties? 554 (App. Div. 2015) (quoting Daguerre, S.A.R.L. v. Rabizadeh, 978 N.Y.S.2d 80, 82 (App. Div. 2013)). The Model Acts provide that “[a] foreign judgment need not

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be recognised if the judgment conflicts with another final and judgment. However, “[c]ourts have found a general policy conclusive judgment”. See 1962 Model Act, § 4(b)(4); 2005 interest in having New York law interpreted by a U.S. court Model Act, § 4(c)(4). Many state statutes incorporate this where the parties agreed that New York law would govern their language. See CPLR § 5304(b)(5); Tex. Civ. Prac. & Rem. Code agreement”. David Benrimon Fine Art LLC v. Durazzo, No. 17 Civ. Ann. § 36.005(b)(4); Cal. Civ. Proc. Code § 1715(2). See generally 6382, 2017 WL 4857603 at *3, (S.D.N.Y. Oct. 26, 2017) (citing Thai-Lao Lignite (Thai.) Co., v. Gov’t of Lao People’s Democratic Rep., Software AG v. Consist Software Sols., No. 08 Civ. 389, 2008 WL 864 F.3d 172, 179, 190–91 (2d Cir. 2017) (enforcing Malaysian 563449, at *25 (S.D.N.Y. Feb. 21, 2008), aff’d, 323 F. App’x 11 arbitration award over English judgment); Byblos Bank Eur., (2d Cir. 2009)). S.A. v. Sekerbank Turk Anonym Syrketi, 885 N.E. 2d 191 (N.Y. 2008) (affirming non-recognition of a Belgium judgment which 2.12 Are there any differences in the rules and conflicted with an earlier judgment of a Turkish court); Brosseau procedure of recognition and enforcement between v. Ranzau, 81 S.W.3d 381 (Tex. App. 2002) (“The Mexican judg- the various states/regions/provinces in your country? ment is not entitled to recognition because it is inconsistent with Please explain. the order of the U.S. bankruptcy court”). There is no fixed rule concerning which judgment is recognised. See Restatement As discussed above, recognition and enforcement is largely a matter (Third) of Foreign Relations Law § 482(2)(e) & cmt. g (Am. Law of state law, and state law differs on a number of issues. Arizona Inst. 1987) (“[C]ourts are likely to recognise the later of two law, for example, although based on the Uniform Foreign Money inconsistent foreign judgments, but under Subsection 2(e) the Judgments Recognition Act, requires that the foreign-country court may recognise the earlier judgment or neither of them”). money judgment originate from a country that has “enacted or In New York, if two foreign judgments are inconsistent, the later adopted a reciprocal law related to foreign-country money judg- of the two will generally be recognised. See Koehler v. Bank of ments that is similar to [the Act]”. A.R.S. § 12-3252(B)(2). A Berm. Ltd., No. M18–302, 2004 WL 444101, at *17 (S.D.N.Y. few other state recognition and enforcement laws contain similar Mar. 10, 2004) (endorsing the judgment that was the latest in provisions. See, e.g., Mass. Gen. Laws ch. 235, § 23A (requiring time). But see Byblos Bank Eur., 885 N.E.2d at 193 (last-in-time reciprocity). In Arizona, reciprocity may be established through rule “need not be mechanically applied”). the foreign country’s legislation or court decisions and practice. The effect of local proceedings between the parties varies State of Netherlands v. MD Helicopters, Inc., 462 P.3d 1038 (Az. Ct. with the jurisdiction and the facts of the case. A U.S. court can App.), aff’d, 2020 WL 7756492 (Ariz. Dec. 30, 2020). stay the ongoing proceeding until the judgment creditors’ claim for recognition and enforcement of a foreign judgment has been adjudicated. Or the foreign country judgment can, in the appro- 2.13 What is the relevant limitation period to recognise priate ongoing case, be raised by counterclaim, cross-claim or and enforce a foreign judgment? affirmative defence. Parallel proceedings on the same claim are generally permitted Neither the Restatement nor the 1962 Recognition Act addresses to proceed simultaneously, at least until a judgment is reached in the statute of limitations question. The 2005 Recognition one case, which can be pled as res judicata in the other. Derr v. Act, however, includes a statute of limitations; it provides that Swarek, 766 F.3d 430, 438 (5th Cir. 2014) (citing Laker Airways, “[a]n action to recognise a foreign-country judgment must be Ltd. v. Sabena, Belg. World Airlines, 731 F.2d 909 (D.C. Cir. 1984)). commenced within the earlier of (i) the time during which the foreign-country judgment is effective in the foreign country, or 2.10 What is your court’s approach to recognition and (ii) 15 years from the date that the foreign-country judgment enforcement of a foreign judgment when there is a became effective in the foreign country”. Both Delaware and conflicting local law or prior judgment on the same or a the District of Columbia have adopted the 2005 Act with its similar issue, but between different parties? limitation provision; California has adopted the 2005 Act but reduced the limitations period to 10 years. See, e.g., Cal. Civ. “Simple inconsistency between American state or federal law Proc. Code § 1721 (“An action to recognise a foreign-country and foreign law does not render a foreign judgment unen- judgment shall be commenced within the earlier of the time forceable.” Ohno v. Yasuma, 723 F.3d 984,1003 (9th Cir. 2013). during which the foreign-country judgment is effective in the However, when the foreign court’s judgment conflicts with foreign country or 10 years from the date that the foreign- U.S. law, a court, in the proper circumstances, may refuse to country judgment became effective in the foreign country”). In recognise the foreign judgment on public policy grounds. Id. New York, the limitations period is the earlier of (a) the general at 1003-04 (discussing cases). The SPEECH Act, 28 U.S.C. §§ statute of limitations for money judgments of 20 years, or (b) the 4101-4105, makes foreign defamation judgments unenforceable foreign period of limitations. CPLR §§ 202, 211(b), cmt. 211:3. in U.S. courts, unless those judgments meet freedom of speech Where the United States seeks to enforce a foreign judg- and freedom of the press constitutional standards. As noted, a ment on behalf of another sovereign, the statute of limitations party can challenge recognition of a foreign judgment if there is is five years and commences running on the day the foreign a conflicting “final and conclusive judgment”, but it is unclear country requests enforcement aid from the Attorney General. whether third parties can raise this defence. See In re Enforcement of Phil. Forfeiture Judgment, 442 F. Supp. 3d 756 (S.D.N.Y. 2020) (discussing limitations statute and accrual). The New York Convention does not contain a statute of 2.11 What is your court’s approach to recognition and limitations for enforcement of arbitral awards or restrictions enforcement of a foreign judgment that purports to with respect to foreign judgments, but foreign arbitral awards apply the law of your country? are typically subject to the FAA’s three-year statute of limitations. See 9 U.S.C. § 207. Parties, of course, are free to incorpo- The mere fact that a foreign court applied U.S. law would have rate time limits into their agreements. no effect on the recognition and enforcement of the foreign

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32 Special Enforcement Regimes Applicable at *22 (S.D.N.Y. Jan. 17, 2020). Upon a sufficient showing, courts “shall require such person to pay the money, or so much of it as to Judgments from Certain Countries is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, 3.1 With reference to each of the specific regimes to deliver any other personal property, or so much of it as is of set out in question 1.1, what requirements (in form sufficient value to satisfy the judgment, to a designated sheriff ”. and substance) must the judgment satisfy in order to CPLR § 5225(b). A divided New York Court of Appeals, in Koehler be recognised and enforceable under the respective v. Bank of Berm. Ltd., 12 N.Y.3d 533 (2009), held that “CPLR article regime? 52 contains no express territorial limitation barring the entry of a turnover order that requires a garnishee to transfer money or This is not applicable in the U.S. See supra Section 2. property into New York from another state or country”, id. at 539, and that the “[l]egislature intended CPLR article 52 to have extra- 3.2 With reference to each of the specific regimes set territorial reach”. Id. Accordingly, a court with personal jurisdic- out in question 1.1, does the regime specify a difference tion over a garnishee could order the garnishee to bring out-of- between recognition and enforcement? If so, what is the state property into New York to satisfy the judgment. (However, difference between the legal effect of recognition and under New York’s “separate entity” doctrine, which survives enforcement? Koehler, an attachment or garnishment on a New York bank will not reach assets of out-of-state branches.) This is not applicable in the U.S. See supra Section 2. In Peterson v. Islamic Republic of Iran, 876 F.3d 63 (2d Cir. 2017), vacated and remanded on other grounds, sub. nom. Clearstream Bank S.A. v. Peterson, 140 S. Ct. 813 (2020), the Second Circuit ruled that a court 3.3 With reference to each of the specific regimes set sitting in New York, with personal jurisdiction over a non-sovereign out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. third party, could “recall to New York extraterritorial assets owned by a foreign sovereign”. Id. at 92. In light of these decisions, judgment creditors find New York courts attractive because, once This is not applicable in the U.S. See supra Section 2. personal jurisdiction is established, courts can require assets located outside New York to be “turned over” to satisfy debts. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ 52 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 12 months) legal developments in your jurisdiction This is not applicable in the U.S. See supra Section 2. relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. 42 Enforcement In GE Energ y Power Conversion France SAS, Corp. v. Outokumpu Stainless 4.1 Once a foreign judgment is recognised and USA, LLC, 140 S. Ct. 1637 (2020), the U.S. Supreme Court held enforced, what are the general methods of enforcement that the New York Convention does not prevent a non-signatory available to a judgment creditor? from compelling arbitration under domestic-law equitable estoppel doctrines. Resolving a circuit split on the issue, the Court held that Under Federal Rule of Civil Procedure 69(a)(1), “[a] money judg- nothing in the text of the Convention or its drafting history prohib- ment is enforced by a writ of execution, unless the court directs ited courts from applying domestic law allowing non-signatories to otherwise. The procedure on execution – and in proceedings compel arbitration. This issue is particularly important for corpo- supplementary to and in aid of judgment or execution – must rations engaging in cross-border commercial transactions, which accord with the procedure of the state where the court is located, often require performance by parties who are not actual signato- but a federal statute governs to the extent it applies”. ries, including sureties and sub-contractors. State law remedies available to enforce foreign judgments generally include injunctions, notices of pendency, orders of 5.2 Are there any particular tips you would give, or attachment and receivership. Attachment actions are often the critical issues that you would flag, to clients seeking vehicle of choice for enforcing foreign judgments. For example, to recognise and enforce a foreign judgment in your in Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 932 F.3d jurisdiction? 126 (3d Cir. 2019), the Third Circuit held that a state-owned oil company was Venezuela’s alter ego, and therefore the district The COVID-19 pandemic and resulting state and local govern- court had jurisdiction under the FSIA to attach the oil compa- ment orders and health advisories have impacted court proce- ny’s assets and satisfy a $1.2 billion judgment. dures, including the filing of new actions and procedures to New York and many other jurisdictions permit “turnover obtain remedies such as attachments. Accordingly, before filing actions”. See CPLR § 5225(b); Cal. Civ. Proc. Code § 708.205. “A an action for recognition and enforcement of a judgment, the most turnover order is a creature of state statute that permits a judg- up-to-date court rules should be consulted, which is of course ment creditor to commence a special proceeding naming the what a practitioner would do even without a pandemic. Court person in possession of the judgment debtor’s personal property orders and updates for the federal courts can be found at https:// as a defendant, whether that person is the judgment debtor or a www.uscourts.gov/about-federal-courts/court-website-links/ third party.” Nike, Inc. v. Wu, No. 13 Civ. 8012, 2020 WL 257475, court-orders-and-updates-during-covid19-pandemic.

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John J. Buckley, Jr. is Senior Counsel with Williams & Connolly LLP. He founded, and previously led, the firm’s International Arbitration Practice Group. A Fellow of the American College of Trial Lawyers, his practice focuses on complex commercial litigation and international and domestic arbitration. A Fellow of the Chartered Institute of Arbitrators, he also serves as arbitrator. Mr. Buckley has consistently been cited among the top U.S. commercial arbitration practitioners in Euromoney’s Guide to the World’s Leading Experts in Commercial Arbitration. He is listed on numerous arbitrator rosters, including the International Centre for Dispute Resolution (“ICDR”), and the International Institute for Conflict Prevention & Resolution (“CPR”). 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 Tel: +1 202 434 5051 725 Twelfth Street, N.W. Email: [email protected] Washington, D.C. 20005 URL: www.wc.com USA

Ana C. Reyes is a Partner and Co-Chair of the firm’s International Litigation Practice Group. Her practice focuses on international litigation and arbitration. Along with her admissions in Bars of the United States, Ms. Reyes is dual-qualified and is listed on the Roll of Solicitors in England and Wales. Ms. Reyes is among those included on The National Law Journal’s Outstanding Women Lawyers list, which recognises “the 75 most accomplished female attorneys working in the legal profession today”. 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. In 2014, Ms. Reyes also received a Masters in International Public Policy, with distinction, from the Johns Hopkins University, School of Advanced International Studies.

Williams & Connolly LLP Tel: +1 202 434 5276 725 Twelfth Street, N.W. Email: [email protected] Washington, D.C. 20005 URL: www.wc.com USA

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. www.wc.com

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