Anwar et al v. Fairfield Greenwich Limited et al Doc. 1048 Att. 32 EXHIBIT 86 Part 1 Dockets.Justia.com / of ank .uty nirt h a PART III or :hat the ENFORCEMENT OF FOREIGN JUDGMENTS it it nds : a Ion Edited by Robin Mayor ay~ :his Chapter 9 The Shared Legal Heritage der Robin Mayor 109 h a ey) Chapter 10 Bermuda .ial Alex Potts 113 (as Chapter 11 The British Virgin Islands Mark Forte and Richard Evans 141 Chapter 12 The Cayman Islands Nigel Meeson QC 153 Chapter 13 The Isle of Man Robert Colquitt 169 Chapter 14 Guernsey John Greenfield and Alistair Wrench 181 Chapter 15 Jersey Mike Cushing and David Benest 193 CHAPTER 9 THE SHARED LEGAL HERITAGE Robin Mayor" 9.1 The status of English law 109 9.2 Statutory methods of enforcement of foreign judgments 110 9.3 Enforcement of foreign judgments at common law III 9.1 THE STATUS OF ENGLISH LAW Much has been said in the preceding chapters on the overriding similarities of the various jurisdictions which form the subject of this book. It is not intended to repeat that here. As previously noted, the six 'offshore' jurisdictions share any number of similarities in their approach to foreign cooperation, which is in large part derived from the statutory provisions and common law developed in the United Kingdom. However, English law as such is not always directly applicable as part of the local law of the subject jurisdictions. The enforcement of foreign judgments is no exception; indeed, there are considerably more similarities than differences in the principles applied, even in the face of some different approaches by way of procedure. This is because the legislation dealing with this topic is based on English (or British) statutory precedents, which in turn results in the body of English precedent dealing with substantially similar statutory rules having particularly significant persuasive force. Nevertheless, there are occasional differences of approach in terms of both the applicable substantive law and local procedural variations. The extent of local Robin Mayor is a partner in the Litigation & Restructuring Department of Conyers Dill & Pearman's Bermuda office. 110 Part III - Enforcement of Foreign Judgments case law dealing with this topic also varies considerably (for instance, there is very little local case law in the British Virgin Islands but a significant body of local jurisprudence in Bermuda). i The overriding principles to be derived from the following six chapters are as j follows: (1) there is no direct enforcement of foreign judgments; and (2) there is ~ a growing tendency to cooperation between sovereign nations such that. it is becoming increasingly clear that jurisdictional boundaries are becoming less clearly defined and more open to reflect the global removal of commercial and political boundaries. In this regard the subject jurisdictions, despite their shared legal heritage, may be seen as not simply slavishly following British judicial precedents, but also creating new law of their own. 9.2 STATUTORY METHODS OF ENFORCEMENT OF FOREIGN JUDGMENTS In all six jurisdictions, there is provision for registration of foreign judgments (i:..'.'...\ 1 from certain named territories and countries. The legislation giving rise to the I registration of judgments in all six jurisdictions is derived from or modelled on I the UK Administration of Justice Act 1920 and the UK Foreign Judgments I (Reciprocal Enforcement) Act 1933 and it is not therefore surprising that the provisions across the six are so similar. It is clear that the identity of those recognised for the purposes of registration are those that have close historical, geographical or political ties. Needless to say, as a result of the diverse history of each of the six, this list, while having some names in common, is equally diverse. Bermuda includes recognition of judgments from the United Kingdom and the Federal courts and many of the state courts in Australia along with most, if not all of the Commonwealth or former Commonwealth dependent island nations. Not surprisingly, the British Virgin Islands similarly recognise many of the island territories and the courts of New South Wales and part of Nigeria. It is interesting to note that none of the six include in the list of those places from which judgments will be capable of registration, the United States. Similarities in the requirements for registration include that the judgment must be: (1) a final judgment (although it can be subject to appeal); (2) from a superior court; and (3) for a sum of money due. Once registered, it will be treated in all material respects as if it was a judgment of the domestic court and the plaintiffs will be able to avail themselves of all of the remedies that they would have had the judgment been obtained in the local jurisdiction in the first place. The Shared Legal Heritage 111 e is Prohibitions against registration include those judgments which represent taxes ! of or penalties imposed by the foreign jurisdiction; this is as a result of the general attitude of these common law based countries towards punitive damages, amongst other things. The foreign court must also have had jurisdiction over the ~as defendant. And the general thread running through these various analyses is that 'e is the foreign court's competence must be similar to the competency which would t is be enjoyed bya corresponding court in one of our six jurisdictions. less and lfed 9.3 ENFORCEMENT OF FOREIGN JUDGMENTS AT cial COMMON-LAW If the foreign judgment is one which does not fall within the relevant registration legislation of the offshore jurisdiction, all six provide for the application of common law principles derived from England and Wales for enforcement. mts Essentially, the English common law position, which is well established and has the been adopted across the six jurisdictions, is that a fresh action may be brought in on the domestic courts against the defendant based on the foreign judgment. .nts Provided that there is no defence of fraud, failure of jurisdiction and it is not the contrary to natural justice or to domestic public policy, the domestic courts will lean heavily toward giving summary judgment and will not seek to reopen the issues and have a fresh trial on matters that have already been determined by a :ion competent foreign court. ; to ing These general principles have always applied to the enforcement of money i of judgments. However, there has historically been some doubt as to whether the the same principles would apply to a non-monetary judgment. The law in the . o. Cayman Islands appears to have developed such that non-money judgments can tish now be enforced. lrts the As discussed in detail in Chapter 15, the Jersey Royal Court held in Brunei : of Investment Agency and Bandone Sdn BHd and Others v Fidelis Nominees Ltd and Others, I that the court should have a discretion to give effect to a foreign non-monetary judgment. The court spent considerable time reviewing the rust development of the common law rules relating to enforcement of foreign [}a judgments and cited with favour several recent cases in which the issue of the be enforcement of foreign non-money judgments has been considered, including a md recent Cayman Islands case and several cases from Canada. The following hey irst [2008] JRC 152. 112 Part III - Enforcement of Foreign Judgments passage from a Canadian case perhaps best reflects the way in which the courts of the subject British-based systems will likely follow: The world has changed since the ... rules [concerning the recognition of foreign judgments] were developed in 19th century England. Modern means of travel and communications have made many of these 19th century concerns appear parochial. The business community operates in a world economy and we correctly speak of a world community even in the face of decentralised political and legal power. Accommodating the flow of wealth, skills and people across state lines has now become imperative. Under these circumstances, our approach to the recognition and enforcement of foreign judgments would appear ripe for reappraisal.' The Royal Court of Jersey determined that they did have the discretion, but that such discretion must be exercised with caution. It would be surprising indeed, if the decisions of the Privy Council (Isle of Man), the Cayman Islands decision' and the Brunei (Jersey) case were not viewed in all six territories as highly persuasive authority for the general proposition that in the modem commercial world that we currently occupy, it is unrealistic not to extend the common law principles of recognising and enforcing foreign judgments to include non-money judgments in certain circumstances. 2 Morguard Investments Limited v De Savoye (1993) SCR 10777, cited with approval by the majority of the Supreme Court of Canada in Pro Swing Inc v Elta Gold Inc (2006) SCC 52. 3 Miller v Gianne and Redwood Hotel Investment Corporation [2007] CILR 18. urts eign and hial. ofa wer. CHAPTER 10 now ition BERMUDA that Alex Potts' not eral it is 10.1 Introduction 113 and 10.2 Statutory provisions for enforcement 115 10.3 Enforcement at common law 125 tain 10.4 Future developments 135 10.1 INTRODUCTION A judgment or order of a foreign court (' a foreign judgment') has no direct legal effect in Bermuda, I and a foreign judgment is not enforceable in Bermuda in and of itself. Steps have to be taken to have a foreign judgment legally enforced in Bermuda. Depending on the nature of the foreign judgment, a foreign judgment may be recognised or enforceable in Bermuda pursuant to various statutory rules or common law rules. In particular: Alex Potts is an Associate in the litigation department at Conyers Dill & Pearman's Bermuda 'I the office.