® Enforcement of Foreign Judgments in 28 jurisdictions worldwide 2012 Contributing editors: Mark Moedritzer and Kay C Whittaker Published by Getting the Deal Through in association with: Advokatfirman Delphi KB Arnauts Attorneys Arzinger Beiten Burkhardt Braddell Brothers LLP Buren van Velzen Guelen NV Carey Olsen Chuo Sogo Law Office PC Clayton Utz Endrös-Baum Associés Felsberg e Associados GoldenGate Lawyers Harris Kyriakides LLC Hoet Pelaez Castillo & Duque Hwang Mok Park PC Juris Corp, Advocates & Solicitors Miller Thomson LLP OPF Partners Perez Bustamante & Ponce Schmitz & Partner Rechtsanwälte Sedgwick Chudleigh Serap Zuvin Law Offices Shook, Hardy & Bacon LLP Shook Hardy & Bacon International LLP Streamsowers & Köhn Villaraza Cruz Marcelo & Angangco Walder Wyss Ltd Werksmans Attorneys contents ® Enforcement of Foreign Global Overview Mark Moedritzer and Kay C Whittaker Shook, Hardy & Bacon LLP 3 Judgments 2012 Australia Colin Loveday and Sheena McKie Clayton Utz 5 Contributing editors Mark Moedritzer and Belgium Laurent Arnauts and Isabelle Ven Arnauts Attorneys 10 Kay C Whittaker Shook, Hardy & Bacon LLP Bermuda Chen Foley, Mark Chudleigh and Nick Miles Sedgwick Chudleigh 16 Business development managers Alan Lee Brazil Marcus Alexandre Matteucci Gomes and Fabiana Bruno Solano George Ingledew Pereira Felsberg e Associados 21 Robyn Hetherington Dan White Canada John K Downing, Jennifer J Quick, Sherry A Kettle and Joel G Belisle Marketing managers Miller Thomson LLP 25 Ellie Notley Sarah Walsh China Tim Meng GoldenGate Lawyers 31 Alice Hazard Cyprus Michalis Kyriakides, Olga Shelyagova and Asrin Daoudi Harris Kyriakides LLC 35 Marketing assistants William Bentley Ecuador Rodrigo Jijón Letort and Juan Manuel Marchan Perez Bustamante & Ponce 40 Sarah Savage France Christoph Schultheiss Endrös-Baum Associés 44 Business development manager (subscriptions) Germany Stephan Kleemann and Stefanie Burkhardt Schmitz & Partner Rechtsanwälte 50 Nadine Radcliffe Subscriptions@ Guernsey Mark Dunster and Sophia Harrison Carey Olsen 56 GettingTheDealThrough.com India Mustafa Motiwala, Dhirajkumar Totala and Neha Samant Assistant editor Juris Corp, Advocates & Solicitors 62 Adam Myers Editorial assistant Japan Masahiro Nakatsukasa Chuo Sogo Law Office PC 67 Lydia Gerges Senior production editor Korea Woo Young Choi, Sang Bong Lee and Dong Hyuk Kim Hwang Mok Park PC 72 Jonathan Cowie Luxembourg Christel Dumont and Guy Perrot OPF Partners 76 Chief subeditor Jonathan Allen Netherlands Philip WM ter Burg and Femke Faes Buren van Velzen Guelen NV 80 Subeditors Caroline Rawson Nigeria Etigwe Uwa, SAN, Adeyinka Aderemi and Chinasa Unaegbunam Davet Hyland Streamsowers & Köhn 86 Sarah Morgan Philippines Simeon V Marcelo Villaraza Cruz Marcelo & Angangco 91 Editor-in-chief Callum Campbell Russia Alexander Bezborodov and Nikita Rodionov Beiten Burkhardt 97 Publisher Singapore Edmund Jerome Kronenburg, Tan Kok Peng and Charmaine Cheong Richard Davey Braddell Brothers LLP 103 Enforcement of Foreign South Africa Roger Wakefield Werksmans Attorneys 108 Judgments 2012 Published by Sweden Sverker Bonde, Polina Permyakova and Anna Backman Advokatfirman Delphi KB 115 Law Business Research Ltd 87 Lancaster Road Switzerland Dieter A Hofmann and Oliver M Kunz Walder Wyss Ltd 120 London, W11 1QQ, UK Tel: +44 20 7908 1188 Fax: +44 20 7229 6910 Turkey Serap Zuvin, Melis Oget Koc and T Gokmen Bolayir Serap Zuvin Law Offices 126 Ukraine Timur Bondaryev, Markian Malskyy and Volodymyr Yaremko Arzinger 131 © Law Business Research Ltd 2011 No photocopying: copyright licences United Kingdom Mark Tyler Shook Hardy & Bacon International LLP 136 do not apply. ISSN 2048-464X United States Mark Moedritzer and Kay C Whittaker Shook, Hardy & Bacon LLP 143 The information provided in this Venezuela Carlos Dominguez Hoet Pelaez Castillo & Duque 149 publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of October 2011, be advised that this is a developing area. Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 Law Business Research SOUTH AFRICA Werksmans Attorneys South Africa Roger Wakefield Werksmans Attorneys 1 Treaties 5 Limitation periods Is your country party to any bilateral or multilateral treaties for the What is the limitation period for enforcement of a foreign judgment? reciprocal recognition and enforcement of foreign judgments? What is When does it commence to run? In what circumstances would the the country’s approach to entering into these treaties and what, if any, enforcing court consider the statute of limitations of the foreign amendments or reservations has your country made to such treaties? jurisdiction? South Africa is not party to any treaty regarding the reciprocal In terms of section 11(d) of the Prescription Act 68 of 1969, claims enforcement of foreign commercial judgments, as opposed to for- are extinguished by prescription three years after they arise. eign arbitral awards. In terms of section 12(3) of the Act, prescription begins to run There is no clear indication of South Africa’s approach to enter- (ie, a claim arises) from the date on which the creditor has knowl- ing into such treaties, but it may consider them unnecessary because edge of the identity of the debtor and of the facts from which the the topic is adequately dealt with by South African statutory and debt arose. common law. According to the principles of South African private international The Reciprocal Enforcement of Civil Judgments Act 9 of 1966 law, matters of procedure are governed by the domestic law of the was intended to facilitate the recognition and enforcement of foreign country in which the relevant proceedings are instituted (the lex fori). civil judgments and was founded on reciprocity. South Africa, how- Matters of substantive law, however, are governed by the law that ever, was unable to conclude mutually acceptable agreements with applies to the underlying transaction or occurrence (the lex causae). foreign governments and this prevented the Act from coming into In South African law, prescription is regarded as substantive. operation. South Africa’s inability to conclude such agreements may Therefore, a South African court seized with the question of whether also explain why it has not entered into any multilateral reciprocal a claim to the enforcement of a foreign judgment has prescribed will treaties on enforcement of foreign judgments. apply the relevant foreign law. The Reciprocal Enforcement of Civil Judgments Act 9 of 1966 Problems may arise, however, where the application of the for- was repealed by the Enforcement of Foreign Civil Judgments Act 32 eign law results in a conflict of laws or a ‘gap’ between the two of 1988, which is not based on reciprocity. systems of law. The Supreme Court of Appeal (South Africa’s highest court in non-constitutional matters) in Society of Lloyds v Price; Society of 2 Intra-state variations Lloyds v Lee (5) SA 393 (SCA) laid down the approach for dealing Is there uniformity in the law on the enforcement of foreign judgments with such conflict. The facts in that case were as follows: among different jurisdictions within the country? • the Society of Lloyd’s sought to enforce default judgments The law on the enforcement of foreign judgments is uniform through- obtained in the High Court of Justice, London against the South out South Africa. African-based defendants more than three years, but less than six years, before the summonses seeking enforcement were served on the defendants in South Africa. The defendants alleged that 3 Sources of law the plaintiff’s right to enforce the judgments in South Africa had What are the sources of law regarding the enforcement of foreign been extinguished by prescription in terms of section 11(d) of the judgments? South African Prescription Act; Enforcement of foreign judgments is governed in South Africa gen- • in determining the question of prescription, being a matter of erally by common law and, in specific cases (dealt with in question substantive law, the court looked to the lex causae (ie, English 10), by statute, in the latter case by the Enforcement of Foreign Civil law of prescription) as being the applicable law; and Judgments Act 32 of 1988. • under English law, however, prescription is a procedural matter and therefore the lex fori (ie, the law of South Africa) applied. 4 Hague Convention requirements It was held that the appropriate way of dealing with the ‘gap’ was to To the extent the enforcing country is a signatory of the Hague adopt a via media approach, which entailed three stages: Convention on Recognition and Enforcement of Foreign Judgments in • a provisional determination of whether, in terms of South African Civil and Commercial Matters, will the court require strict compliance law, prescription in terms of the Prescription Act was substantive with its provisions before recognising a foreign judgment? or procedural; As mentioned, South Africa is not a signatory to the Hague Conven- • a provisional determination of whether, in English law, prescrip- tion on Recognition and Enforcement of Foreign Judgments in Civil tion in terms of the English legislation was substantive or proce-