· enforcement of foreign judgments 2020 a practical cross-border insight into the enforcement of...

Enforcement of Foreign Judgments 2020A practical cross-border insight into the enforcement of foreign judgments

Fifth Edition

CC RRDDCommercial Dispute Resolution

Featuring contributions from:

Advokatfirman Hammarskiöld & Co

Allen & Gledhill (Myanmar) Co., Ltd.

Allen & Gledhill LLP

Archipel

Bae, Kim & Lee LLC

Bär & Karrer Ltd.

Blake, Cassels & Graydon LLP

Boss & Young, Attorneys-at-Law

Covington & Burling LLP

CRA – Coelho Ribeiro e Associados

CRB Africa Legal

Debarliev, Dameski and Kelesoska, Attorneys at Law

ESENYEL & PARTNERS LAWYERS AND CONSULTANTS

Gall

GASSER PARTNER Attorneys at Law

GVZH Advocates

Herbert Smith Freehills LLP

King & Wood Mallesons

Konrad Partners

Kubas Kos Gałkowski

Macesic and Partners LLC

Machado Meyer Sendacz e Opice Advogados

MinterEllison

Montanios & Montanios LLC

Mori Hamada & Matsumoto

Osborne Clarke LLP

Papadimitriou – Pimblis & Partners

PIERRE THIELEN AVOCATS S.à r.l

Portolano Cavallo

Quevedo & Ponce

Rahmat Lim & Partners

Roberts & Shoda

Sébastien Champagne & Vanessa Foncke

Simont Braun

Sorainen

Van Oosten Schulz De Korte

Williams & Connolly LLP

Wilmer Cutler Pickering Hale and Dorr LLP

Enforcement of ForeignJudgments 2020Fifth Edition

Contributing Editors:

Louise Freeman & Shivani SanghiCovington & Burling LLP

©2020 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, digital or analogue, in whole or in part, is strictly forbidden.

DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehen-sive 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.

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Table of Contents

Q&A Chapters24 Australia

MinterEllison: Beverley Newbold & Evan Goldman

31 AustriaKonrad Partners: Dr. Christian W. Konrad & Philipp A. Peters 130 Korea

Bae, Kim & Lee LLC: Seong Soo Kim & Yoo Joung Kang

136 LiechtensteinGASSER PARTNER Attorneys at Law: Thomas Nigg & Domenik Vogt

Expert Chapters

1 Enforcement Under the Hague Choice of Court ConventionLouise Freeman & Shivani Sanghi, Covington & Burling LLP

39 BelarusSorainen: Alexey Anischenko, Valeria Dubeshka & Katsiaryna Hashko

44 BelgiumSimont Braun: Rafaël Jafferali & Fanny Laune

49 BrazilMachado Meyer Sendacz e Opice Advogados: Eduardo Perazza de Medeiros & Ariana Júlia de Almeida Anfe

55 CanadaBlake, Cassels & Graydon LLP: Erin Hoult & Josianne Rocca

62 ChinaBoss & Young, Attorneys-at-Law: Dr. Xu Guojian

69 CroatiaMacesic and Partners LLC: Anita Krizmanic

76 CyprusMontanios & Montanios LLC: Yiannis Papapetrou

82 EcuadorQuevedo & Ponce: Alejandro Ponce Martínez & María Belén Merchán

87 England & WalesCovington & Burling LLP: Louise Freeman & Shivani Sanghi

94 FranceArchipel: Jacques-Alexandre Genet & Michaël Schlesinger

100 GermanyHerbert Smith Freehills LLP: Catrice Gayer & Sören Flecks

142 LuxembourgPIERRE THIELEN AVOCATS S.à r.l: Peggy Goossens

147 MalaysiaRahmat Lim & Partners: Jack Yow & Daphne Koo

153 MaltaGVZH Advocates: Dr. Karl Briffa, Dr. Ariana Falzon & Dr. Nicole Sciberras Debono

158 MyanmarAllen & Gledhill (Myanmar) Co., Ltd.: Minn Naing Oo

162 NetherlandsVan Oosten Schulz De Korte: Jurjen de Korte

167 NigeriaRoberts & Shoda: Adeniyi Shoda & Abolanle Davies

174 North MacedoniaDebarliev, Dameski and Kelesoska, Attorneys at Law: Ivan Debarliev & Martina Angelkovic

179 PolandKubas Kos Gałkowski: Dr. Barbara Jelonek-Jarco & Agnieszka Trzaska

188 PortugalCRA – Coelho Ribeiro e Associados: Rui Botica Santos & Mark Robertson

194 SingaporeAllen & Gledhill LLP: Tan Xeauwei & Melissa Mak

201 SpainKing & Wood Mallesons: Alfredo Guerrero & Fernando Badenes

125 JapanMori Hamada & Matsumoto: Yuko Kanamaru & Yoshinori Tatsuno

5 European UnionSébastien Champagne & Vanessa Foncke

12 International Enforcement Strategy – An OverviewAndrew Bartlett, Osborne Clarke LLP

17 The Personal Jurisdiction Filter in the Recognition and Enforcement of Foreign Judgments in the United StatesDavid W. Ogden, David W. Bowker, Karin Dryhurst & Apoorva J. Patel, Wilmer Cutler Pickering Hale and Dorr LLP

107 GreecePapadimitriou – Pimblis & Partners: Nikos L. Kanellias

113 Hong KongGall: Nick Gall, Ashima Sood & Kritika Sethia

119 ItalyPortolano Cavallo: Filippo Frigerio, Martina Lucenti, Micael Montinari & Claudia Rivieccio

207 SwedenAdvokatfirman Hammarskiöld & Co: Sandra Kaznova & Caroline Bogemyr

213 SwitzerlandBär & Karrer Ltd.: Saverio Lembo & Aurélie Conrad Hari

Table of Contents

220 TanzaniaCRB Africa Legal: Rugambwa Cyril Pesha & Charles R.B. Rwechungura

231 USAWilliams & Connolly LLP: John J. Buckley, Jr. & Ana C. Reyes

226 TurkeyESENYEL & PARTNERS LAWYERS AND CONSULTANTS: Selcuk Esenyel

Enforcement of Foreign Judgments 2020

Chapter 1 1

Enforcement Under the Hague Choice of Court Convention

Covington & Burling LLP Shivani Sanghi

Louise Freeman

The Convention only applies in international matters. This is defined as all situations “unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State” (Article 1(2)).

What Does the Hague Choice of Court Convention Not Cover?As it applies only to exclusive jurisdiction agreements, the Convention is widely understood not to apply to asymmetric jurisdiction agreements.2 Asymmetric (or hybrid) jurisdiction agreements typically require one party to an agreement to sue in the courts of a specified jurisdiction only, whilst allowing the other party to sue in any court with jurisdiction and are commonly found in financial markets transactions.

The Convention also has exclusions intended to confine it to international trade (e.g., it does not apply to consumers, employ-ment law, family law and probate). It also does not apply to certain specialist matters (such as arbitration and competition / antitrust law) (Article 2).

How Does the Hague Choice of Court Convention Work?The Convention contains three basic rules that give effect to exclusive choice of court agreements:1. For an exclusive jurisdiction agreement establishing a choice

of court that is a Contracting State to the Convention, the chosen court is obliged to hear the case (Article 5). The chosen court cannot decline to do so on the basis that the case should be decided in another Contracting State, or that another Contracting State is more appropriate, or that another Contracting State is already hearing it. So, if the parties choose exclusive English jurisdiction, the English court must accept jurisdiction.

2. All other courts must refuse to hear the case (Article 6). So, if the parties choose exclusive English jurisdiction, Mexican courts (for example) must refuse to hear the case.

3. Any judgment on a case’s merits given by the chosen court under an exclusive choice of court agreement must be recognised and enforced across all other Contracting States, provided that the judgment would be enforceable in the Contracting State of Origin (Article 8) and a ground of refusal does not apply (Article 9). This includes summary judgments3 and determination of costs or expenses by the court, but does not include enforcement of any interim measures. So, if the parties choose exclusive English juris-diction and the English court gives a judgment on the case, the Mexican court (for example) must enforce that judg-ment unless one of the limited exceptions applies.

The Hague Choice of Court Convention is regularly referred to in the context of its role post-Brexit. In this chapter, we go back to basics, with a reminder of what the Convention is and what it does, as well as looking at its likely role post-Brexit.

What is the Hague Choice of Court Convention?The Hague Choice of Court Convention1 is an international treaty concluded within the Hague Conference on Private International Law. It was signed on 30 June 2005 and it came into effect on 1 October 2015.

It is designed to promote international trade and invest-ment by offering greater certainty for parties involved in busi-ness-to-business contracts and international litigation. This is achieved through the creation of a worldwide framework of rules relating to jurisdiction agreements (also known as forum-selection or choice of court clauses) in civil and commer-cial matters, and the subsequent recognition and enforcement of a judgment given by a court of a Contracting State designated in such an agreement.

The Convention covers: jurisdiction rules for determining which court hears a case; the obligations of a court when an action is commenced which breaches an exclusive jurisdiction agreement in favour of another court; and the recognition and enforcement of judgments given by other Contracting States.

Who are Parties and Signatories to the Hague Choice of Court Convention?The current parties to the Convention (each a “Contracting State”) are all of the EU Member States including, until 31 January 2020, the UK by virtue of its EU membership, Mexico, Montenegro and Singapore.

The United States, China, Ukraine and North Macedonia have signed but not yet ratified the Convention, and are there-fore not yet parties to the Convention.

When Does the Hague Choice of Court Convention Apply?The Convention applies to “exclusive” choice of court agree-ments “concluded in civil or commercial matters” (Article 1). An agreement designating one or more specific courts in a Contracting State is deemed to be exclusive unless the parties have expressly provided otherwise (Article 3).

The chosen court has jurisdiction unless the choice of court agreement is: substantially invalid under the law of the Contracting State (e.g., entered into by fraud, mistake, misrep-resentation, duress, lack of capacity, etc.); manifestly unjust or contrary to the chosen court’s public policy; or cannot be performed for exceptional reasons beyond the control of the parties.

© Published and reproduced with kind permission by Global Legal Group Ltd, London

2 Enforcement Under the Hague Choice of Court Convention


Remaining uncertainty

The steps taken by the UK government to ensure the continued application of the Hague Convention are welcome. There remain some limitations and uncertainties arising from the regime when compared to the current EU-wide regime, however, such that it does not answer all issues that may arise in this context.

In particular, the Hague Convention does not contain any rules relating to jurisdiction in situations other than exclusive choice of court agreements, and does not contain any rules relating to jurisdiction in the absence of party choice.

There is also some uncertainty as to whether courts in EU Member States will be bound to apply the Convention to exclu-sive jurisdiction clauses entered into after 1 October 2015 (when the Hague Convention came into force for the EU) but prior to the date of the UK’s independent accession to the Convention, as it applies only from the date of “entry into force” for the state of the chosen court. This gives rise to uncertainty as to whether the date of “entry into force” for the UK is the date it entered into force by means of the UK’s membership of the EU, or only when it entered into force independently, by the UK’s own accession to the Convention.

The UK has legislated in this regard9 to protect choice of court agreements entered into after 1 October 2015 and prior to the date of the UK’s independent accession to the Convention. However, this only dictates how UK courts will address this issue. By contrast, the European Commission has published guidance suggesting that the Convention will only apply to exclusive choice of court agreements concluded after the UK has become an independent party to the Convention.10 It therefore remains to be seen how EU Member State courts will address this issue.

ConclusionUnless a bespoke agreement is put in place before the end of the Transition Period, the Convention will have increased relevance between the UK and the EU post the Transition Period. The Convention would then provide a useful stop-gap for EU/UK judicial relations, but the remaining uncertainties seem sure to become the subject of litigation.

Endnotes1. Formally the “Hague Convention of 30 June 2005 on

Choice of Court Agreements”.2. As referenced at paragraph 32 of the Explanatory Report

to the Hague Convention, although there is one English case in which the judge suggested, obiter, that this was not necessarily the case (Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm)).

3. Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018] SGHCR 8 (The High Court of Singapore).

4. Regulation (EU) 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels Recast Regulation). The Brussels Recast Regulation takes priority in accordance with Article 26(6)(a), Hague Convention.

5. The Withdrawal Agreement was ratified by the UK on 23 January 2020 and by the EU on 30 January 2020.

6. Footnote to Article 129(1), Withdrawal Agreement.7. By virtue of Article 127 and Article 67, Withdrawal

Agreement. 8. The UK government has indicated that the UK intends

to accede to the Lugano Convention it its own right at the end of the Transition Period. Switzerland, Iceland and Norway have issued statements that they will support a

How Did the Convention Apply in the UK pre-Brexit? The UK, by virtue of its EU membership, has been a party to the Convention since the Convention came into force on 1 October 2015.

The Convention has been most relevant to the UK where there is an exclusive choice of court agreement with a nexus to Mexico, Montenegro or Singapore. The Convention has had limited effect where there is a nexus to an EU Member State, as the Brussels Recast Regulation4 has taken priority.

What Will be the Relevance of the Convention After Brexit?

Under the Withdrawal Agreement

Now that the Withdrawal Agreement has been ratified and approved by the UK and the EU,5 the UK will continue to be bound by the obligations stemming from international agree-ments including the Hague Convention during the Transition Period ending on 31 December 2020 (Articles 126 and 129(1), Withdrawal Agreement).

However, whether or not other non-EU signatories to the Hague Convention will treat the Hague Convention as contin-uing to have effect in relation to UK jurisdiction clauses during the Transition Period is unclear – as it is not something that the UK and the EU can simply agree between themselves. Pursuant to the terms of the Withdrawal Agreement,6 the EU has now notified other parties to international agreements that the UK is to be treated as an EU Member State during the Transition Period; however, the notification is not binding on the non-EU signatories to the Hague Convention.

The UK will also continue to be treated as a Member State for the purposes of the Brussels Recast Regulation,7 which will there-fore continue to be the primary means by which jurisdiction and enforcement will be assessed in matters with an EU nexus.

It seems likely that, at some stage before the end of the Transition Period, the UK government will accede to the Hague Convention in its own right.

In the event of no civil jurisdiction and judgments agreement being concluded

If no civil jurisdiction and judgments agreement is entered into by the end of the Transition Period (or indeed, if there is a full no-deal Brexit), the UK intends to become a party to the Hague Convention in its own right. The Convention then would govern jurisdiction and enforcement of relevant judgments as between the UK and the EU (as well as the other Contracting States of Mexico, Singapore and Montenegro) where there is an exclusive jurisdiction clause in favour of one of those states.

It is open to the UK to become a party to the Convention in its own right once the Convention ceases to apply to the UK, at the end of the Transition Period. The UK intends to deposit an instrument of accession to the Convention prior to the end of the transition period.

The UK’s accession at the end of the Transition Period would enable the Hague Convention to apply to disputes with an EU-nexus, unless and until some other arrangement is put in place between the EU and the UK, such as an agreement for the UK to join the Lugano Convention8 (which applies more broadly than the Hague Convention because it is not limited to exclusive jurisdiction agreements) or a bespoke agreement between the UK and the EU on jurisdiction and enforcement of judgments.


3Covington & Burling LLP


request for accession from the UK. The UK will need to obtain the support of those countries and also of the EU and Denmark to accede to the Lugano Convention.

9. The Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018.

10. Commission Notice to stakeholders on the effect on civil justice and private international law of the UK’s with-drawal from the EU (18 January 2019); questions and answers related to the United Kingdom’s withdrawal from the European Union in the field of civil justice and private international law (11 April 2019) (particularly section 3.3).


4


Enforcement Under the Hague Choice of Court Convention

Louise Freeman focuses on 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 super person to work with”, Ms. Freeman helps clients to navigate challenging situations in a range of industries, including financial markets, technology and life sciences. 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.

Covington & Burling LLP 265 Strand London WC2R 1BHUnited Kingdom

Tel: +44 20 7067 2000Email: [email protected]: www.cov.com

Covington & Burling LLP (Covington) is a pre-eminent international law firm with more than 1,000 attorneys and advisors and with offices in Beijing, Brussels, Dubai, Frankfurt, Johannesburg, London, Los Angeles, New York, Palo Alto, San Francisco, Washington, Shanghai, and Seoul. In an increas-ingly regulated world, we have an exceptional ability to navigate clients through their most complex business problems, deals, and disputes.

www.cov.com

Shivani Sanghi is a dual-qualified lawyer: a Solicitor-Advocate in England and Wales; and an Advocate in India. Drawing on her extensive expe-rience 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.




Chapter 2 5

European Union

Sébastien Champagne & Vanessa Foncke Vanessa Foncke

Sébastien Champagne


1 Overview of European Recognition and Enforcement Instruments

Instrument Relevant Jurisdiction(s) Application Ratione Materiae Application Ratione Temporis

Recast Brussels I

Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

All EU Member States. Civil and commercial matters, irrespec-tive of the nature of the court or tribunal. 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 or analogous relationships, bankruptcy and analogous proceedings, social security, arbitration, maintenance obligations from a family relationship, parentage, marriage or affinity, wills and succession including maintenance obliga-tions arising by reason of death.

Legal proceedings instituted on or after 10 January 2015.

Brussels ICouncil Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdic-tion and the recog-nition and enforce-ment of judgments in civil and commer-cial matters.

■ All EU Member States.■ Switzerland, Norway and Iceland.

See Recast Brussels I above, except that liability of the State for acts and omis-sions in the exercise of State authority and maintenance obligations from a family relationship, parentage, marriage or affinity are not explicitly excluded subject matters.

Legal proceedings instituted before 10 January 2015 and after 1 March 2002 (and after 1 July 2007 for Denmark).

(Revised) Lugano ConventionConvention on juris-diction and the recognition and enforcement of judg-ments in civil and commercial matters of 30 October 2007 (replacing the preceding Convention of 16 September 1988).

■ All EU Member States.■ Switzerland, Norway and Iceland.

See Brussels I above. Recognition and enforce-ment proceedings of judgments rendered in: ■ Denmark or Norway in the EU and vice versa instituted on or after 1 January 2010;■ Switzerland in the EU and vice versa instituted as of 1 January 2011; and ■ Iceland in the EU and vice versa instituted as of 1 May 2011. For cases arising before those dates of entry into force, the Lugano Convention of 1988 continues to apply.


6 European Union


ESC RegulationRegulation (EC) No. 861/2007 of 11 July 2007 establishing a European Small Claims Procedure.

All EU Member States, except Denmark.

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 irre-spective of the nature of the court or tribunal that do not exceed the amount of €2,000 (and €5,000 as of 14 July 2017), excluding interest, expenses and disbursements. Excluded subject matters:■ see Recast Brussels I above; and■ employment law, tenancies of immovable property (except for actions on monetary claims) and violations of privacy and rights relating to personality, including defamation.

Legal proceedings instituted on or after 1 January 2009. The amendments by Regulation (EU) 2015/2421 of 16 December 2015 entered into force on 14 July 2017.

EOP RegulationRegulation (EC) No. 1896/2006 of 12 December 2006 creating a European order for payment procedure.


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:■ revenue, customs or administrative matters, liability of the State for acts and omissions in the exercise of State authority;■ rights in property arising out of matri-monial relationships, wills and succession, bankruptcy and analogous proceedings, 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.

Legal proceedings instituted on or after 12 December 2008.The amendments by Regulation (EU) 2015/2421 of 16 December 2015 entered into force on 14 July 2017.

EEO RegulationRegulation (EC) No. 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims.


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; c) never appeared or been represented at court with respect to the disputed claim even though having initially objected to it, if such conduct amounts to a tacit admis-sion of the claims or the facts alleged by the creditor under the laws of the Member State in which the judgment was given; ord) 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.

Judgments, court settlements and authentic instruments established on or after 21 October 2005.


7Sébastien Champagne & Vanessa Foncke


Hague ConventionConvention of 30 June 2005 on Choice of Court Agreements.

■ All EU Member States.■ Mexico. ■ Montenegro.■ Singapore.■ China, Ukraine, and the United States have signed, but not yet ratified, the Hague Convention.

The recognition and enforcement of judgments, where the State in which the judgment was rendered is a party to the Hague Convention and its courts are the competent court pursuant to an exclusive choice of court agreement.Excluded subject matters:■ exclusive choice of court agreements with a consumer or relating to employ-ment contracts;■ the status and legal capacity of natural persons, maintenance obligations, various other family law matters, wills and succession, insolvency and analogous matters, the carriage of passengers and goods, several maritime matters, anti-trust matters, liability for nuclear damage, claims for personal injury, tort or delict claims for tangible property damage not arising from a contractual relationship, rights in rem in and tenancies of immov-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.

Exclusive choice of court agree-ments concluded after its entry into force for the State of the chosen court, but not if proceed-ings were instituted before its entry into force for the State of the court seized. The Convention entered into force on:■ 1 October 2015 for the EU Member States (except Denmark) and Mexico;■ 1 October 2016 for Singapore;■ 1 August 2018 for Montenegro; and■ 1 September 2018 for Denmark.

NY ConventionConvention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.

All countries signatory to the Convention.

The recognition and enforcement of arbi-tral awards rendered in another State than the one where recognition or enforce-ment is sought.

Entry into force on 7 June 1959.

2 EU Recognition and Enforcement Instruments

2.1 What requirements (in form and substance) must the judgment satisfy in order to be recognised and enforceable under the respective instrument?

The judgment must fall within the scope of application of the instrument at stake as set out in section 1 above.

Under no circumstances may a foreign judgment of another Member State be reviewed as to its substance (see Article 52 Recast Brussels I, Articles 36 and 45(2) Brussels I and Lugano Convention, Article 22(2) ESC Regulation, Article 21(2) EEO Regulation, Article 22(3) EOP Regulation and Article 8(2) Hague Convention).

2.2 With reference to each of the specific instruments set out in section 1, does it specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement?

Pursuant to all but one of the European instruments set out in section 1, judgments rendered in an EU Member State are recognised in other Member States without any need for sepa-rate recognition proceedings (so-called de plano recognition; see Article 36 Recast Brussels I, Articles 33(1) Brussels I and Lugano Convention, Article 20(1) ESC Regulation, Article 5

EEO Regulation and Article 19 EOP Regulation). The Hague Convention still requires creditors to formally apply for recog-nition of judgments within its field of application (see Chapter 3 Hague Convention).

The legal effect of the (de plano) recognition of a judgment is that, further to the (de plano) recognition, the foreign judgment will obtain the same binding force as any judgment recognised in the country of origin. The exact nature and scope of such binding force will thus be determined by the law of the country of origin where the judgment was rendered.

As concerns the enforcement of foreign judgments, Brussels I and the Lugano Convention require that an exequatur be obtained prior to being able to actually enforce the judgment at stake (also referred to as “registering a judgment” or obtaining a “decla-ration of enforceability”) (Articles 38 Brussels I and Lugano Convention). Once the exequatur procedure has been success-fully completed, the judgment will be enforced in the Member State in which enforcement is sought in the same way as any judgment rendered in that respective Member State. The actual enforcement of the judgment remains a pure domestic law matter.

Recast Brussels I has abandoned the need to obtain an exequatur prior to the actual enforcement of a judgment. Therefore, a judgment rendered in a Member State which is enforceable in that respective Member State is enforceable in any other Member State without the need for an exequatur (Article 39 Recast Brussels I).

Pursuant to Article 20(1) ESC Regulation, Article 5 EEO Regulation and Article 19 EOP Regulation, judgments are enforceable as such, without the need for a prior exequatur (as is the case for judgments under Recast Brussels I).


8 European Union


not required under the EEO Regulation in order to obtain enforcement. The recognition of the EEO cannot be chal-lenged under this procedure (Article 5). Finally, the enforce-ment procedure as such is also governed by the law of the Member State in question (Article 20(1)).

d) ESC Regulation The procedure under the ESC Regulation is very similar

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 (Article 20(1)). The party seeking enforcement shall request the court or tribunal to issue a certificate – at no extra cost – by using a standard Form D, as attached to Annex IV of the ESC Regulation (Article 20(2)). Upon receiving this certificate, the party seeking enforcement shall provide said certificate together with a copy of the judgment to the competent enforcement authorities of the Member State in which enforcement is sought, and if necessary, also a duly certified translation of the certificate into the language of the Member State in which enforcement is sought (Article 21(2)). Once more, the enforcement procedure as such is governed by the law of the Member State in which enforce-ment is sought (Article 21(1)).

e) EOP Regulation Under the EOP Regulation, a European Order for

Payment (“EOP”) which has become enforceable in the Member State in which the judgment was rendered shall be recognised and enforced in other Member States without the need for an exequatur and without any possi-bility of challenging its recognition (Article 19). The party seeking enforcement needs to send a copy of the EOP, and if necessary a duly certified translation of the EOP into the language of the Member State in which enforcement is sought, to the relevant enforcement authorities of that Member State (Article 21(2)). Again, enforcement takes place in accordance with the national rules and procedures of the Member State where the EOP is being enforced (Article 21(1)).

f) Hague Convention Finally, under the Hague Convention, the recognition

and enforcement procedure is governed by the law of the State of enforcement unless the Hague Convention provides otherwise. The documents to be produced in the framework of these procedures are more elaborate than the documents required in the EU Regulations described above. More specifically, the party seeking recognition or enforcement must produce the following set of documents (Article 13):

i) a complete and certified copy of the judgment;ii) either the exclusive choice of court agreement, a certi-

fied copy thereof, or any other evidence of its existence;iii) if the judgment was given by default, the original or

a certified copy of a document establishing that the document which instituted the proceedings or an equivalent document was notified to the defaulting party;

iv) any documents necessary to establish that the judg-ment has effect or, where applicable, is enforceable in the State of origin;

v) in case of a judicial settlement: a certificate of a court of the State of origin that the judicial settlement, or a part of it, is enforceable in the same manner as a judg-ment in the State of origin;

vi) any other documents that the court deems necessary if certain conditions are not met;

vii) an application for recognition or enforcement may be accompanied by a document, issued by a court

By declaring a judgment enforceable, a national court grants the same value to that foreign judgment as a domestic enforce-able judgment. Consequently, upon obtaining an exequatur, the creditor can subsequently enforce the judgment, for instance, by using the coercive measures that are available in the Member State in which enforcement is sought.

2.3 The procedure for recognising and enforcing a foreign judgment

a) Recast Brussels I As explained in question 2.2 above, Recast Brussels I

continues the tradition of de plano recognition of foreign judgments and, in addition, no longer requires an exequatur.

The actual enforcement is not governed by Recast Brussels I, but by the law of the Member State where execution of the judgment is sought. Since an exequatur no longer needs to be obtained, the creditor can instruct directly the local competent authority (e.g., a bailiff ) responsible for proceeding with the execution as such. The applicant has to provide two documents to the competent authority, namely (i) a copy of the judgment sought to be enforced, and (ii) a certificate delivered by the court of origin (i.e., the court where the judgment was originally rendered) confirming the enforceable measures (Articles 37(1) and 42(1)). If deemed necessary, a translation of the afore-mentioned certificate and of the judgment sought to be enforced by a qualified translator may also be required (Articles 37(2), 42(3), 43(2) and 57).

b) Brussels I and the Lugano Convention Pursuant to Brussels I and the Lugano Convention,

the party seeking enforcement of a foreign judgment must apply for an exequatur with the court or compe-tent authority in the Member State of enforcement listed in Annexes II to Brussels I and the Lugano Convention. The party applying for an exequatur must produce (i) a copy of the judgment (Articles 53(1) Brussels I and Lugano Convention), and (ii) a certificate delivered by the court of origin (i.e., the court where the judgment was originally rendered) confirming the enforceable measures (Articles 53(2) Brussels I and Lugano Convention). If deemed necessary, a certified translation of the aforementioned documents will have to be produced as well (Articles 55(2) Brussels I and Lugano Convention). The actual procedure of applying for an exequatur is governed by the law of the Member State in which enforcement is sought (Articles 40(1) Brussels I and Lugano Convention).

c) EEO Regulation When seeking to obtain a European Enforcement Order

(“EEO”) under the EEO Regulation, an application has to be filed with the court that rendered the judgment. The court will consider first whether the judgment is eligible pursuant to the conditions set forth in Article 6 of the EEO Regulation, which mainly requires that the judgment is enforceable in the Member State of origin, the concerned claim is uncontested (as defined in section 1 above) and the judgment was rendered in the Member State of the debtor’s domicile. If so, the court will provide the creditor with (i) a sealed copy of the judgment, and (ii) an EEO certificate. Upon receiving those two documents, the creditor can send a copy of those documents, and, if necessary, a duly certified translation of the certificate into the language of the Member State of enforcement to the competent enforcement author-ities of the Member State in which enforcement is sought (Article 20(2)). As referenced in section 1, an exequatur is




a) the choice of court agreement was null and void under the law of the State of the chosen court, unless that court determined that the agreement was valid;

b) a party did not have the proper capacity to conclude the agreement under the law of the State of enforcement;

c) the document which instituted the proceedings or an equiv-alent 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 defence, unless the defendant entered an appearance and presented his case without contesting notifica-tion in the court of origin, provided that the law of the State of origin permitted notification to be contested; or

ii) was notified to the defendant in the State of enforcement in a manner that is incompatible with fundamental prin-ciples of the State of enforcement concerning service of documents;

d) the judgment was obtained by fraud in connection with a matter of procedure;

e) recognition or enforcement would be manifestly incom-patible with the public policy of the State of enforcement;

f ) the judgment is inconsistent with a judgment given in the State of enforcement in a dispute between the same parties; or

g) the judgment is inconsistent with an earlier judgment given in another State between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State of enforcement.

2.5 The impact on the recognition and enforcement of a foreign judgment when in the State of enforcement there is: (a) a conflicting local judgment between the parties relating to the same issue; (b) an appeal pending between the parties; or (c) a conflicting local law

a) See question 2.4 above, where a conflicting local judgment can be a ground for refusal of recognition or enforcement.

b) If an appeal is pending in the courts of the jurisdiction of origin, under Brussels I and the Lugano Convention, courts of the Member State in which recognition of a judgment is sought to have the discretion to grant a stay pending resolution of the appeal (Articles 37 and 46). The same applies to Recast Brussels I (Articles 38 and 51), as well as to the EEO Regulation (Article 23 (c)), the ESC Regulation (Article 23(c)) and the EOP Regulation (Article 23 (c)).

c) National courts can only refuse recognition and enforce-ment on the grounds referred to above in question 2.4. Hence, conflicting local laws can only be a ground for refusing recognition or enforcement of foreign judgments if, for example, local law violates public policy. In that respect the concept of ‘public policy’ is not to be consid-ered from a purely domestic point of view, but is more limited and to be interpreted as international public policy.

2.6 The relevant limitation period to recognise and enforce a foreign judgment

The question on the relevant limitation period is typically a ques-tion of substantive domestic law. The European instruments referred to in section 1 do not provide for limitation periods for the recognition and enforcement of foreign judgments.

(including an officer of the court) of the State of origin, in the form recommended and published by the Hague Conference on Private International Law; and

viii) if necessary, a certified translation of the documents listed above.

2.4 Grounds on which recognition/enforcement of a judgment can be challenged and when

Pursuant to Articles 45–46 Recast Brussels I, recognition and enforcement shall be refused, upon the opposing party’s appli-cation (so not ex officio), if: a) the recognition or enforcement is manifestly contrary to

public policy (understood as “international” public policy); b) the defendant was not served with the document that insti-

tuted the proceedings in sufficient time and in such a way as to enable him or her to arrange for his or her defence;

c) the judgment is irreconcilable with a judgment given in a dispute between the same parties;

d) the judgment is irreconcilable with an earlier judgment given in another EU or non-EU Member State involving the same cause of action and the same parties; or

e) the judgment conflicts with specific provisions of Recast Brussels I on jurisdiction in matters relating to insurance, consumer contracts or individual employment contracts or on exclusive jurisdiction (Articles 10–24).

Under Brussels I and the Lugano Convention (Articles 34–35), recognition shall be refused based on the above-ref-erenced grounds (except for ground (e) as far as employment contracts are concerned).

Pursuant to Article 43(5) Brussels I, an appeal against the exequatur has to be lodged within one month of service thereof. The time period will be two months if the party against whom enforcement is sought is domiciled in another Member State than that in which the exequatur was given (see also Article 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 enforcement of foreign judgments.

An EOP and judgments rendered in a Member State in the ESC Procedure or certified as an EOO are recognised and enforced in the other Member States without exequatur (Article 20(1) ESC Regulation, Article 5 EEO Regulation and Article 19 EOP Regulation). Furthermore, under the ESC Regulation, the EEO Regulation and the EOP Regulation, the existence of an irrecon-cilable judgment in the same cause of action and between the same parties provides a ground for challenging enforcement as long as the irreconcilability was not and could not be raised as an objec-tion during the proceedings where the judgment was given (Article 22(1) ESC Regulation, Article 21(1) EEO Regulation and Article 22(1) EOP Regulation). Under the EOP Regulation, enforcement shall also be refused if and to the extent that the defendant has paid the claimant the amount awarded in the EOP (Article 22(2) EOP Regulation). Furthermore, an opposition can be lodged against the EOP in accordance with Articles 16–17 of the EOP Regulation. Similarly, an application for rectification or withdrawal can be filed under Article 10 of the EEO Regulation and an application for review can be filed under Article 19 of the EEO Regulation and Article 18 of the ESC Regulation (note also that Article 18 was amended as of 14 July 2017 by Regulation (EU) 2015/2414). Whether an appeal is available against a judgment rendered in the ESC Procedure will depend on the procedural law of each Member State (Article 17 ESC Regulation), but the judgment is enforceable notwithstanding any appeal (Article 15 ESC Regulation).

Finally, under Article 9 of the Hague Convention, recognition or enforcement may be refused if:


10 European Union


On 2 July 2019, the Hague Conference on Private International Law and its delegates concluded the text of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters “(the “Hague Judgments Convention”), a complementary Convention to the Hague Convention of 30 June 2005 on Choice of Court Agreements. The Hague Judgments Convention aims to facilitate the cross-border recognition and enforcement of judgments emanating from the courts of contracting states to the Hague Judgments Convention. The Convention applies to civil and commercial judgments and expressly excludes judgments concerning crim-inal, penal, administrative, revenue or customs matters. On 2 July 2019, Uruguay became the first signatory state.

DisclaimerThe views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.

Judgments must generally still be enforceable in the State in which they were given in order to be enforced in EU Member States (Article 39 Recast Brussels I, Articles 38(1) Brussels I and Lugano Convention, Article 6(1)(a) EEO Regulation, Article 19 EOP Regulation, Article 20(1) ESC Regulation and Article 8(3) Hague Convention). In other words, a judgment can only be enforced to the extent that the statute of limitation has not yet expired.

3 Conclusion

Noteworthy recent (in the last 12 months) legal developments in the EU relevant to the recognition and enforcement of foreign judgments

Further to Brexit, the issue on the recognition and enforce-ment of judgments between the UK and the European Union is governed by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community of 17 October 2019 which entered into force on 1 February 2020 (the “Withdrawal Agreement”). In essence, the Withdrawal Agreement provides that EU law on international jurisdiction in cross-border civil disputes will continue to apply to legal proceedings instituted before the end of the transition period, and that relevant EU law on recognition and enforcement of judgments will continue to apply in regard to judgments in these proceedings.




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 41000 Brussels Belgium

Tel: +32 2 645 14 11Email: [email protected]

Vanessa Foncke is a partner in the Global Dispute practice of Jones Day’s Brussels Office. She practises in all aspects of dispute resolu-tion 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 41000 BrusselsBelgium

Tel: +32 2 645 14 11Email: [email protected]



Chapter 312

International Enforcement Strategy – An Overview

Osborne Clarke LLP Andrew Bartlett

(i) Information Gathering Gathering information about a debtor’s assets can be crucial to successful enforcement. However, the most successful means of gathering information will depend on the circumstances of any particular case. Information gathering will involve the review of publicly accessible resources and the compulsion of persons to provide information about assets pursuant to orders of the court.

Gathering information from publicly accessible sources is a process which may be undertaken by lawyers but may also be undertaken by specialist investigation practices. Sometimes the investigations will require manual checks of public registers in remote jurisdictions, or the surveillance of properties but much can also be done by searching the internet with the assistance of sophisticated software that enables a broad range of informa-tion to be gathered quickly and efficiently. Increasingly, indi-vidual debtors and their families have a significant footprint on social media which can assist in identifying assets and tracking extravagant lifestyles.

However, in many cases, it will be essential to obtain orders from a court compelling the provision of information by debtors and/or third parties who have information about the assets of the debtor. Information can be obtained both at a pre-judgment stage and at a post-judgment stage, although unsurprisingly, it is generally easier to obtain orders requiring the provision of infor-mation about assets at a post-judgment stage.

There is no single answer as to which courts one should go to in order to obtain information about the assets of the debtor. In general, in common law systems, the court that is determining the substance of the dispute will consider itself to have personal jurisdiction over the debtor such that it can compel the debtor to provide information about its worldwide assets both before and after judgment.

In addition, in many legal systems (and under the EU jurisdic-tion and enforcement regime), provisional and protective meas-ures can be granted by the courts of a state other than the state that is determining the substance of the dispute, where there is a sufficient connection between the protective measure sought and that other state. On this basis, it may well be possible to obtain an order requiring the provision of information about assets in the courts of the place of the assets or the debtor’s domicile, as well as in the court determining the substance of the dispute.

In common law systems, in a post-judgment context where a judgment has not been satisfied, obtaining orders requiring the debtor to disclose all its assets is a relatively straightforward process. Debtors can be required to attend court for examina-tion about their assets and/or they can be required to provide a sworn affidavit detailing their assets. Failures to comply with

International Enforcement Strategy – An OverviewInternational enforcement is a highly complicated area of prac-tice which involves the interplay of different legal systems and national laws amidst a range of bilateral and multilateral interna-tional conventions and treaties. Although it involves numerous technicalities, it is more of an art than a science because of the numerous uncertainties that exist. There are many books which focus on the applicable principles under different national laws but often what is lacking is an overview of how the overall process works. A clear strategy is essential but strategy can rarely be fixed at the outset and it will usually be iterative, adapting to developments that take place in the proceedings. Strategy must take into account the intricacies of the applicable legal princi-ples whilst at the same time taking into account the practical and commercial factors which are fundamental to any enforcement strategy. Experience is therefore essential.

The three main elements to an effective enforcement strategy will tend to be: (i) information gathering; (ii) preservation of assets; and (iii) execution/enforcement against assets. In some cases, further steps will have to be taken to unwind transfers/disposals of assets by the debtor and/or to enforce against assets held in the names of connected persons. The importance of each of these stages will depend on the facts of the case. In many situations, if success is achieved in the information gathering and preservation of assets stages, formal execution/enforcement against assets will not be necessary. If a debtor gets to a point where successful enforcement appears inevitable, it will very often pay up. However, in more diffi-cult cases where assets are no longer owned by the debtor, proceed-ings may end up involving a web of third parties who are said to hold assets beneficially owned by the debtor or who are said to have received the debtor’s assets other than on commercial terms.

A debtor seeking to avoid enforcement will typically rely on a combination of technical arguments against recognition of a foreign judgment and the use and abuse of procedural mecha-nisms to delay matters. Some debtors will go further by dissi-pating their assets and asserting that supposedly innocent third parties have prior rights over the debtor’s property.

When considering enforcement strategy, the question of where particular steps should be taken will be an important and complex question, and there may be several options. This over-view chapter addresses the issues of: (i) information gathering; (ii) preservation of assets; (iii) execution/enforcement against assets; as well as the two further important considerations of (iv) sovereign immunity; and (v) limitation periods. However, an effective enforcement strategy should really be planned from before the commencement of the original proceedings since decisions such as those relating to the choice of defendants, the choice of jurisdiction, the choice of cause of action and methods of service can all impact on the issue of enforcement.


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The preservation of assets can either take the form of a “provi-sional attachment” in respect of the relevant property or an “in personam” order which prohibits persons subject to the jurisdiction of the relevant court from disposing of the asset (referred to as “freezing orders”). In general terms, the former approach of provisional attach-ment orders is used in civil law jurisdictions and the latter approach of freezing orders is used in common law jurisdictions.

The different nature of these orders impacts on the issue of which courts will consider themselves to have jurisdiction to grant such orders. ■ Because the provisional attachment order operates over

the specific property to which it relates, such orders will normally only be granted by the courts of the place of the relevant assets. This means that the courts of civil law jurisdictions will not grant provisional attachment orders over worldwide assets.

■ In contrast, the personal nature of the freezing order means that common law courts will grant so-called “worldwide” freezing orders. One must realise that the freezing order does not give the claimant any security interest in the relevant property and/or any priority over other creditors. What it does is order the named individ-uals (who are subject to the jurisdiction of the court) not to dispose of the relevant assets, wherever they may be located. If a party to litigation breaches a freezing order or other injunction, it will be in contempt of court and may be imprisoned or fined. Furthermore, non-parties to the liti-gation who are subject to the jurisdiction of the court and who are notified of the order will also be in contempt of court if they assist in any breach of the injunction.

Both forms of orders have their strengths and limitations and deciding on what is the most appropriate means of preserving assets will depend on a careful assessment of the circumstances of the case combined with a pragmatic approach as to what can be achieved in different jurisdictions within the specified time period.

Over the last 10 years, receivership orders have become a much more widely used tool in common law jurisdictions for the preservation of assets. This follows the grant of the first world-wide receivership orders by the English court in 2008, in the case of Masri v Consolidated Contractors International (No.2) [2008] EWCA Civ 303. This was soon followed by similar decisions in various other common law jurisdictions. In this context, a ‘receivership order’ (or ‘order for the appointment of a receiver’) does not derive from insolvency laws. It is the process whereby the court appoints an individual to act as a receiver to stand in the shoes of the respondent in respect of the management of specified assets. The receiver is an officer of the court and owes duties to the court but plainly their role is to preserve the relevant assets – a task which is in the creditor’s interests. As for freezing orders, the receivership order does not grant any proprietary right or interest over the relevant assets. Its effec-tiveness relies on either the respondent or relevant third parties complying with the order and recognising the receiver.

Post-judgment receivership orders often fill a useful purpose in assisting enforcement where legal execution against assets would be impossible because of jurisdictional issues or a lack of certainty or specificity as to the whereabouts of assets. For example, receivership orders might be used to collect in a future revenue stream which will become payable to the judgment debtor over time. As well as being used to enforce contractual rights, receivership orders may also be used to exercise powers under a trust or powers as a shareholder. Naturally, the rights exercised by the receiver can never be greater than the rights of the debtor itself, and so due regard must be paid to the interests of third-party security interests. Of course, determining what is a bona fide third-party security interest and what is not can be difficult.

such orders, and the concealment of assets, is likely to consti-tute a contempt of court punishable by imprisonment or a fine.

In common law systems, Norwich Pharmacal orders can often be used to obtain information from third parties about a debtor’s assets. There are a number of subtleties about which courts can compel third parties such as banks to provide information and concerns about breaching foreign laws, an important consider-ation. In general, when seeking information from banks, one has to go to the courts of the country where the bank account is held, but in other cases, the courts of the domicile of the third party will be the normal choice.

In very general terms, obtaining detailed information about assets in civil proceedings tends to be more difficult in civil law systems. However, the counterbalance to this is that often information can be obtained through criminal proceedings.

In the international context, the discovery procedures in the United States under section 1782 of the United States Code are of particular note. Whilst there are conflicting decisions as to the precise scope of documents that can be obtained under this procedure, in general terms, it enables a claimant to obtain information from third parties in the US in a very wide range of circumstances where the provision of information is in support of foreign proceedings. Interestingly, in some cases banks oper-ating in the US have been required to provide information about accounts outside the US under this procedure.

It is worth noting that the sort of information that can be obtained can include information about the operation of an asset that produces a revenue stream for the debtor and not only straightforward information about the ownership of bank accounts, etc.

As well as obtaining orders specifically requiring the provi-sion of information about assets, another route to obtaining information can be through the appointment of a court- appointed receiver. In most common law systems, a receiver can be appointed to manage and collect in certain specific assets or classes of assets. The powers that are granted to the receiver can include the power to require the provision of information. It has been clear since a landmark judgment in 2008 (Masri v Consolidated Contractors (No.2) [2008] EWCA Civ 303) that world-wide receivership orders can be granted by the English court and other common law courts have followed suit.

(ii) Preservation of AssetsThe preservation of assets is often the most important step in the overall enforcement process. If assets can be effectively secured through the application of interim measures such as freezing injunctions, often the formal process of execution against the assets will not become necessary.

However, that is by no means always the case. In particular:■ Assets may be frozen where they are held by a third party.

In this situation, the court will not have determined that the assets can definitely be enforced against by the cred-itor; the court will most likely only have determined that there is a good argument or a realistic prospect of the cred-itor being able to establish that it can enforce against the assets. In this context, the debtor may well continue to dispute that it has the requisite interests in or rights over the assets held by the third party.

■ In other situations, it may be asserted that the assets frozen by the creditor are the subject of third-party security inter-ests which take precedence over the creditor’s interests. Whilst in some cases, there may be genuine third-party security interests held by independent third parties, in other cases, the security interests may be held by parties which the creditor believes are connected to the debtor and there may be concerns that they are a device to evade enforcement.


14 International Enforcement Strategy – An Overview


However, the European regime does allow for the recognition of all types of orders and judgments including orders for the grant of interim relief.

The recognition phase

The approach to recognition depends on the legal system of the jurisdiction concerned and whether there are any applicable treaties or conventions governing the process of recognition. One impor-tant point to note is that the fact that there may not be any applicable treaty or convention does not mean that recognition of a judgment is not possible. Most national laws will have a system for the recog-nition and enforcement of foreign judgments, although the ease of enforcement can vary very significantly. Equally, the applicability of an international treaty or convention does not itself necessarily mean that enforcement will be straightforward and speedy.

In general terms, the main approaches to enforcement can be categorised as follows:■ Enforcement of judgments of EU and EEA Member

States in other EU or EEA Member States.■ The Recast Brussels Regulation provides a system for

the automatic enforcement of judgments between EU Member States.

■ The Lugano Convention 2007 provides a relatively straightforward system for the enforcement of judg-ments between EU Member States and Iceland, Switzerland and Norway.

■ Enforcement of judgments where a bilateral or interna-tional treaty of convention applies.■ There are a number of applicable bilateral treaties

between different countries and checks should always be made in respect of the relevant countries.

■ International conventions include the Riyadh Convention and the GCC Convention involving a range of Arab states, as well as the 2005 Hague Choice of Courts Convention. Notably, the 2005 Hague Convention only applies to judgments granted by courts which were the subject of an exclusive jurisdiction clause. The text of the 2019 Hague Choice of Courts Convention was finalised in July 2019 and will apply to judgments where there is no exclusive jurisdiction clause. However, no country has ratified it yet.

■ Typically, under these sorts of conventions or trea-ties, the recognition and enforcement of judgments is governed by a straightforward code which provides only very limited grounds for refusing to enforce a judgment of the other state.

■ Enforcement of judgments between specified common-wealth countries.■ Specific statutory provisions create a straightforward

process for the registration of foreign judgments. This process, unlike the normal common law process for enforcement, recognises the foreign judgment rather than granting a new judgment based on the debt arising from the foreign judgment.

■ Enforcement where no international treaty or convention applies.■ In civil law jurisdictions foreign judgments tend to

be recognised by the process of “exequatur” by which the court formally recognises that a foreign judgment should have effect in the relevant legal system as if it were a national court judgment.

■ In common law jurisdictions there is not a process of exequatur or recognition as such. Instead, the claimant commences proceedings seeking an order for the payment of the debt created by the foreign judgment.

Variations between jurisdictions in the requirements for the grant of interim relief

The requirements for the grant of provisional attachments and/or freezing orders vary between jurisdictions. ■ A claimant will have to show that it has a claim against

the defendant, otherwise there could be no justification for 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 between legal systems.

■ In many jurisdictions, assets will only be frozen or subject to a provisional attachment, if the claimant can show that there is a risk that the defendant’s assets will be dissipated or that the defendant will evade payment of any judgment. However, this is not always the case, and in some jurisdic-tions, there is no such requirement.

■ Requirements for the applicant to provide undertakings or security in respect of the potential harm that might unfairly be caused to the defendant by the order vary significantly across jurisdictions. However, these requirements can be important practical points when applying for relief.

■ The duty of full and frank disclosure that arises in common law systems when an application is made without notice is another important strategic issue. In general terms, this duty does not apply in civil law systems.

Granting relief in support of foreign proceedings

In most legal systems, the courts will grant some form of provi-sional/interim relief in support of claims that are ongoing before those courts. However, should they grant interim relief in support of foreign proceedings? As trade and litigation have become more international in their nature, many legal systems have adapted to meet this challenge.

Within the European jurisdictional regime, the Recast Brussels Regulation (Regulation (EU) 1215/2012) specifically provides separate rules as to which courts have jurisdiction to grant provi-sional or protective measures as against the courts which have jurisdiction to determine the substance of the dispute. These rules contemplate that provisional measures may be granted either by the court determining the substance of the dispute or by the courts of another EU Member State where there is sufficient connection between the relief sought and the state concerned. The prime example being the obtaining of a provisional attach-ment order in the courts of the place where the asset is located.

In many common law regimes specific statutory measures have been put in place to enable freestanding proceedings to be commenced for the purpose of obtaining interim relief in support of foreign proceedings. However, in the absence of such provisions, it may be the case that a claimant can only make an application for provisional/interim relief if it has also commenced substantive proceedings to recognise and enforce a foreign judgment in the relevant jurisdiction.

(iii) Execution/Enforcement Against AssetsThe process of enforcement of a judgment in another jurisdic-tion really consists of two separate stages. First, is the process of obtaining an order of the foreign court which either recognises the foreign judgment as being enforceable or itself replicates the provisions 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”).

In most cases, only judgments for the payment of a speci-fied sum of money can be enforced in a foreign jurisdiction.


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Most legal systems will have systems for the enforcement of judgments land, shares, debts and bank accounts but some will require very specific identification of the assets in advance by the creditor which can create a significant practical bar to enforcement. In particular, banking secrecy laws can result in practical difficulties in enforcing against bank accounts where the contents of the account are not known.

As mentioned above, the interests of third-party creditors can also pose significant problems in terms of enforcement.

Unsurprisingly, the timescale of proceedings can also vary hugely between jurisdictions, particularly when issues of service are taken into account.

Sovereign ImmunityWhen considering the issue of international enforcement, reference must be made to the issue of sovereign immunity. Sovereign immunity can severely restrict the normal principles of enforcement of judgments.

Sovereign immunity can arise at two stages. First, there is immunity against adjudication and secondly, there is immunity against enforcement against the sovereign’s assets. One must look to the relevant national laws on sovereign immunity in order to determine whether it applies. However, one may well have to apply different national laws on sovereign immunity in respect of the immunity against adjudication and the immunity against enforcement.

Accordingly, whenever the defendant and/or the assets against which a claimant wishes to enforce has/have close connections with a state, careful consideration should be given to issues of sovereign immunity.

Limitation Periods in Respect of the Enforcement of JudgmentsThe fact that one has obtained a judgment does not mean that there are no further considerations in relation to the limita-tion periods. Many jurisdictions will have limitation periods in respect of the period within which a judgment must be enforced. As a general principle, one should assume that if a judgment is no longer enforceable in the jurisdiction in which it is granted, it is likely that it will no longer be enforceable in another juris-diction. However, the applicable rules of the enforcing state may also impose limitation periods for enforcement and so these must be checked as well.

Whilst the procedure is conceptually different from the civil law procedure, the same practical effect is 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 to any enforcement strategy. Typical battle grounds include: ■ whether a judgment complies with public policy (and

Sharia law) when enforcement is in the Middle East;■ whether or not there is ‘reciprocity’ of enforcement of judg-

ments when enforcing in a civil law jurisdiction – argu-ments are commonly made that because of the different nature of enforcement in common law jurisdictions (as explained above) as compared with the civil law exequatur procedure, there is no reciprocity;

■ whether or not the original court had jurisdiction to grant the judgment, applying the test set by the law of the place of enforcement; and

■ whether or not the proceedings were properly served.Note that when enforcing under some regimes, judgments

obtained by default rather than following participation by the defendant in the proceedings can be more difficult to enforce.

In some jurisdictions, it is very easy for a judgment creditor to become embroiled in a litany of seemingly never-ending court hearings and submissions. Genuine experience of the poten-tial pitfalls and ways of avoiding them is therefore invaluable, combined with reliable local law advice.

The impact of Brexit on the enforcement of judgments between EU Member States and the UK is not, at the time of writing of this chapter, clear. At a minimum, the enforcement of judgments post-Brexit will be possible either under the 2005 Hague Convention (where this applies), under applicable national laws (to the extent that they permit enforcement), or under some remaining bilat-eral treaties between the UK and individual EU Member States. However, the UK is likely to seek to become a party to the Lugano Convention which would put it in a similar position to that of Switzerland in terms of the enforcement of judgments.

The enforcement phase

The enforcement phase involves the process of enforcing against specific assets of the debtor. This is often referred to as “execution”. Those assets might include tangible property such as interests in land, moveable property or cash, and intangible property such as shares, intellectual property rights or debts.

The legal procedures that can be used will depend solely on the national law of the country concerned and will be confined by jurisdictional and territoriality principles.


16

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 enforce-ment 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 LLPOne London Wall London, EC2Y 5EBUnited Kingdom

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International Enforcement Strategy – An Overview


Chapter 4 17

The Personal Jurisdiction Filter in the Recognition and Enforcement of Foreign Judgments in the United StatesWilmer Cutler Pickering Hale and Dorr LLP


David W. Bowker

David W. Ogden

Karin Dryhurst

Apoorva J. Patel

has not signed or ratified the Convention.5 Given the absence of a single nationwide standard, the laws of the 50 individual states govern the recognition and enforcement of foreign judg-ments in the United States. The majority of states have codi-fied their respective rules in legislation, typically modelled after the 1962 Uniform Foreign Money Judgments Recognition Act (“UFMJRA”) or the 2005 Uniform Foreign-Country Money Judgments Recognition Act (“UFCMJRA”) (collectively, the “Uniform Acts”).6 The rules in approximately 15 states are reflected in judicially-developed common law.

Importantly, notwithstanding these varying sources of governing law, most state law standards for the recognition and enforcement of foreign judgments are broadly similar. The rela-tive uniformity of the prevailing statutory and common law principles is largely rooted in the standards articulated by the U.S. Supreme Court in its 1895 decision in Hilton v. Guyot.7 In Hilton, the Supreme Court emphasised principles of interna-tional comity and due process in setting out basic rules for the recognition of foreign judgments.8 The Court’s articulation in Hilton of a general federal common law standard for the recog-nition and enforcement of foreign judgments was subsequently replaced by the application of state law standards.9 Nonetheless, most states have adopted Hilton’s basic approach in their respec-tive statutory or common law rules, which generally provide that final and conclusive foreign judgments are presumptively enti-tled to recognition and enforcement unless certain mandatory or discretionary grounds for non-recognition apply.10

II. U.S. Courts’ Scrutiny of the Foreign Court’s Exercise of Personal JurisdictionU.S. state and federal courts universally consider circumstances where the foreign rendering court did not have personal juris-diction over the defendant to be a basis to deny recognition of the foreign judgment. Under the Uniform Acts, a U.S. court is required to refuse recognition of a foreign judgment if the foreign court lacked personal jurisdiction.11 Similarly, common law principles, as reflected in the Restatement (Fourth) of Foreign Relations Law12 and the decisional law of the states where the Uniform Acts are not in force,13 deem a foreign court’s lack of personal jurisdiction to be a mandatory ground in any U.S. court for non-recognition of the judgment at issue. The assertion that a foreign rendering court lacked jurisdiction over the defendant is one of the most frequently litigated defences to the recogni-tion and enforcement of foreign judgments in U.S. courts.14

A threshold choice-of-law question is fundamental to this inquiry: what law provides the applicable standards by which a U.S. court must assess the foreign court’s exercise of personal jurisdiction over the defendant? The potentially applicable law includes U.S. law (i.e., the law of the U.S. state where enforce-ment of the foreign judgment is sought), foreign law (i.e., the

IntroductionIn today’s global business landscape, plaintiffs who obtain court judgments outside the United States against defendants who are based, or have significant assets, in the United States may seek to enforce such judgments in the United States. In these circum-stances, U.S. courts asked to recognise and enforce foreign court judgments generally apply “jurisdictional filters”, among other criteria that govern recognition and enforcement,1 to assess whether the non-U.S. or “foreign” court that rendered the judg-ment at issue properly exercised jurisdiction in the underlying case.2 If a U.S. court determines that the foreign court did not have personal jurisdiction over the defendant in the original liti-gation, the U.S. court will not recognise or enforce the foreign judgment.3

In U.S. courts, the task of determining whether a foreign court had personal jurisdiction sufficient to meet U.S. standards for recognition and enforcement is not always straightforward. This chapter explores a number of complex issues that may arise in a U.S. court’s scrutiny of this question. This chapter also offers guidance for holders of non-U.S. judgments or litigants in foreign court proceedings who anticipate actions in the United States to recognise and enforce a foreign judgment.

Section I provides an overview of the legal regime governing the recognition and enforcement of foreign judgments in the United States. Section II explores the issue of what law applies to a U.S. court’s assessment of the foreign court’s exercise of personal jurisdiction over the defendant. Section III addresses U.S. courts’ process of identifying, interpreting, and applying foreign law as part of the personal jurisdiction analysis. Section IV examines ways in which a defendant’s decision on how to proceed in the foreign litigation can have implications on poten-tial personal jurisdiction defences in subsequent U.S. recogni-tion and enforcement proceedings. Section V covers recent trends in the jurisprudence, in particular how service-of-pro-cess requirements in the foreign jurisdiction and the presence of a contractual forum-selection clause designating the foreign forum affect a U.S. court’s assessment of the foreign court’s personal jurisdiction.

I. The Legal Regime Applicable to the Recognition and Enforcement of Foreign Judgments in the United StatesThere is currently no federal statute governing the recognition and enforcement of foreign judgments throughout the United States.4 Nor is there presently in force in the United States any international agreement regarding the recognition and enforce-ment of foreign judgments. Although there is now a Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, the United States


18 The Personal Jurisdiction Filter


U.S. personal jurisdiction law. Litigants should arm U.S. courts with the applicable foreign law, especially if the foreign court did not analyse jurisdiction or did so incorrectly. This may particu-larly be the case where the defendant did not appear in the foreign court, and therefore, the foreign court did not address the question of whether its law permitted the exercise of juris-diction over the particular defendant. In some cases, foreign jurisdictional requirements entail only technical service require-ments that can be readily determined by the U.S. court.25 Other cases may require the interpretation of foreign-language stat-utory provisions and decisional law.26 Litigants should ensure that the court has accurate translations of the laws at issue. Furthermore, U.S. courts are free to consider almost any rele-vant material or source, and litigants should consider submitting helpful secondary sources interpreting the relevant foreign law.27 Where foreign law issues are sufficiently complex, litigants often rely on expert witnesses to help establish the contours of rele-vant foreign law and guide the court’s analysis of foreign juris-dictional requirements.28

Few U.S. courts have addressed explicitly whether to defer to a foreign court’s factual findings relevant to jurisdiction. Some courts have proceeded to consider the parties’ factual submis-sions without addressing whether the foreign court made rele-vant factual findings and whether such findings are binding.29 Some courts have declined to revisit certain factual findings of the foreign court related to personal jurisdiction, such as the fact that an agreement submitted to the foreign court was genuine or the facts surrounding service of process.30

Litigants should submit evidence of relevant facts, particu-larly where there are allegations of fraud or where the foreign court did not consider a personal jurisdiction defence because the defendant did not appear. Note, however, that at least one court has required that the plaintiffs show that the foreign court’s exercise of personal jurisdiction was justified based on the evidence submitted to the foreign court.31

IV. Considerations for Defendants in Foreign Court ProceedingsDefendants in foreign court proceedings that anticipate recog-nition and enforcement proceedings in the United States would be wise to consider at the outset of the case how best to proceed in the foreign litigation, taking into account the approach of U.S. courts at the recognition and enforcement stage to ques-tions of personal jurisdiction in the foreign court. For example, defendants should decide whether to appear in the foreign court for the limited purpose of contesting service or personal juris-diction, or for the broader purpose of also contesting the merits, informed in part by U.S. approaches to recognition and enforce-ment, as such decisions may have consequences for a defend-ant’s personal jurisdiction defences in subsequent U.S. proceed-ings. There are three principal options for the defendant: 1) appear in the foreign court and defend on the merits, including challenging service and/or personal jurisdiction; 2) appear in the foreign court for the limited purpose of challenging service and/or personal jurisdiction; or 3) decline to appear in the foreign court and allow a default judgment.

As stated in the Uniform Acts, a defendant who chooses the first option and litigates on the merits generally waives a future personal jurisdiction defence to the recognition or enforcement of the foreign judgment by a U.S. court.32 Whether a defendant who raises a timely challenge to the foreign trial court’s personal jurisdiction and loses may proceed to litigate the merits without waiving its jurisdictional objections in subsequent U.S. recog-nition and enforcement proceedings depends on whether the appearance on the merits was “voluntary”. In an action to enforce a Japanese judgment in federal court in New York, the defendant had objected to personal jurisdiction in Japan.33

law of the state where the judgment was rendered), a combina-tion of both U.S. and foreign law, or international law or norms. The Uniform Acts do not directly address the law applicable to the determination of whether the foreign court had personal jurisdiction over the defendant. The reason may be that, as one federal appellate court observed, “there is currently a division of authority on this question”.15

Although U.S. courts have adopted disparate approaches to this issue, courts have ordinarily required – at a minimum – that the foreign court’s exercise of personal jurisdiction comply with the jurisdictional due process requirements for personal jurisdic-tion imposed by the U.S. Constitution.16 In other words, a U.S. court will not enforce a foreign judgment if the foreign court would have lacked personal jurisdiction over the defendant based on U.S. constitutional standards,17 which require the defendant to have minimum contacts with the forum such that the court’s exercise of jurisdiction over the defendant does not offend “tradi-tional notions of fair play and substantial justice”.18 U.S. courts have also examined the foreign court’s exercise of personal juris-diction under the foreign court’s standards, without diminishing the baseline applicability of U.S. jurisdictional principles.19 Other courts have considered whether the foreign court’s exercise of personal jurisdiction comports with both U.S. jurisdictional standards and the law applicable in the foreign court.20 U.S. courts may also refer to international principles in analysing whether the foreign court had personal jurisdiction over the defendant.21

In addition to requiring that the foreign court has properly exercised personal jurisdiction, both Uniform Acts set out a non-exhaustive list of specific circumstances “that are adequate as a matter of law to establish that the foreign court had personal jurisdiction”.22 In particular, under the Uniform Acts, it is suffi-cient to establish that a foreign court had personal jurisdiction – and, accordingly, a U.S. court may not refuse to recognise a foreign court judgment for lack of personal jurisdiction – if any one of the following jurisdictional bases is present: “(1) the defendant was served with process personally in

the foreign country; (2) the defendant voluntarily appeared in the proceeding,

other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant;

(3) the defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;

(4) the defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its prin-cipal place of business in, or was organized under the laws of, the foreign country;

(5) the defendant had a business office in the foreign country and the proceeding in the foreign court involved a [cause of action or claim for relief ] arising out of business done by the defendant through that office in the foreign country; or

(6) the defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a [cause of action or claim for relief ] arising out of that operation.”23

These enumerated bases of personal jurisdiction further reflect the application of the “minimum contacts” test under U.S. juris-dictional standards to a U.S. court’s determination of whether to recognise and enforce a foreign judgment, as discussed above.24

III. U.S. Courts’ Application of Foreign Jurisdictional PrinciplesU.S. courts that look to foreign law as part of their analysis must identify, interpret, and apply foreign law and standards that may be quite different from the due process concepts applied under


19Wilmer Cutler Pickering Hale and Dorr LLP


the forum where the judgment was rendered may affect the U.S. court’s assessment of the foreign court’s personal jurisdiction.

U.S. courts in recent years have considered whether the foreign court’s exercise of personal jurisdiction requires the plaintiff to meet the technical requirements for service of process in addi-tion to the substantive dimensions of personal jurisdiction.50 One federal appellate court to address the question determined, under California law, that the foreign court could not validly exercise personal jurisdiction over the defendant because the defendant had not been properly served, even if the defendant had notice of the action.51 A state court in California took the same approach.52 These courts required both proper service under the law of the foreign court and that the notice be “reason-ably calculated to apprise a defendant of the suit”, as required by U.S. due process standards.53

Conversely, another federal appellate court addressed the narrow question whether, under Pennsylvania law, a defendant could avoid enforcement of a foreign judgment based on a failure to meet the requirements for service of process, where the defendant had executed a forum-selection clause estab-lishing the foreign jurisdiction as the proper venue.54 The court reasoned that the Pennsylvania Recognition Act “refers only to the substantive dimensions of personal jurisdiction, and not the technical requirements for service of process”.55 Although a defendant must have notice of the foreign proceedings, there are no “strict service requirements”.56 Critically, however, the Pennsylvania defendant had executed a forum-selection clause accepting the foreign forum and had been personally served; the deficiency was that the service occurred by a process server, not a sheriff as required under state law. The defendant in the California case had not executed a similar forum-selection clause and had not been personally served. The highest state court in New York similarly relied on a forum-selection clause to permit the exercise of personal jurisdiction in the selected forum, even when technical service requirements of the Hague Convention had not been met and the defendant had actual notice.57

A number of cases in recent years have addressed whether forum-selection clauses are sufficient to impart personal juris-diction in the foreign court. Although an early lower court deci-sion held that a forum-selection clause is insufficient to permit the exercise of personal jurisdiction,58 most courts to recently address the issue “reject personal jurisdiction challenges … where the defendant agreed to a forum selection clause desig-nating the foreign jurisdiction as the venue for legal disputes”.59 These decisions are consistent with domestic cases dealing with U.S. courts’ exercise of personal jurisdiction over defendants who executed forum-selection clauses designating U.S. states as appropriate fora.60

Endnotes1. See 1962 Uniform Foreign Money Judgments Recognition

Act, § 4(a) (requiring non-recognition of a foreign judg-ment on grounds of unfair foreign courts, lack of personal jurisdiction, or lack of subject matter jurisdiction), § 4(b) (permitting non-recognition of a foreign judgment on grounds of lack of notice, fraud, public policy, an incon-sistent judgment, violation of a forum-selection clause, or inconvenient forum); 2005 Uniform Foreign-Country Money Judgments Recognition Act, §§ 4(b), 4(c) (setting out substantively similar mandatory and discretionary grounds for non-recognition of a foreign judgment).

2. See generally Hague Conference on Private International Law, Conclusions and Recommendations of the Expert Group on Possible Future Work on Cross-Border Litigation in Civil and Commercial Matters, Work. Doc. No. 2E, at 2 n.2 (2012) (“The term ‘jurisdictional filters’ refers to jurisdictional criteria for recognition and enforcement of judgments,

After the Japanese court ruled that it had personal jurisdiction over the defendant, the defendant participated in a trial on the merits.34 The New York court explained that a defendant who appears only to contest jurisdiction does not waive jurisdictional objections to enforcement on the basis of that appearance.35 That said, because the defendant had proceeded to defend on the merits in the foreign court, it was deemed to have waived its jurisdictional objection in the U.S. action to enforce the judg-ment.36 However, the court suggested that “conceivably” some situation could arise where defending on the merits was no longer “voluntary”, such that jurisdictional objections to recog-nition of the judgment would not be waived.37

A defendant who chooses the second option, appearing only for the limited purpose of challenging personal jurisdiction, generally does not waive its personal jurisdiction defence in the United States.38 Courts in the United States have held that there may be no res judicata effect to a foreign court’s rejection of jurisdictional challenge.39 As one court explained: “Since a foreign court’s determination that it has personal jurisdiction does not necessarily comport with the prerequisites of this coun-try’s Constitution for such a finding, an assertion of jurisdiction by a foreign court should not preclude a challenge here. Such a challenge is not, in fact, a second bite of the apple on the juris-diction issue.”40 The UFCMJRA suggests that this is the correct approach.41 At least one court has held, in an action to enforce a Canadian judgment in Illinois, that where a defendant raises a personal jurisdiction defence in the foreign court and loses, it is barred from raising the defence again on the basis of res judicata, even if the defendant did not litigate on the merits in the foreign court.42 The court relied on the fact that the defendant had raised a personal jurisdiction defence in the Ontario trial court but “pursued no further action in the Ontario court to challenge or reverse [the] ruling” on jurisdiction.43 In addition, a foreign court under its laws may not recognise a limited appearance and may hold that the defendant has waived its personal jurisdiction defence by appearing at all.

For defendants who choose the third option and decline to participate at all in the foreign proceedings, the right to present a personal jurisdiction defence in U.S. courts is preserved.44 U.S. courts have noted the risk, however, in deciding not to appear in a foreign court even when the defendant believes the foreign court lacks personal jurisdiction.45 Although the defendant will not have waived a personal jurisdiction defence, the enforcing court may nonetheless determine that the foreign court properly exercised personal jurisdiction.46

An added wrinkle arises where the defendant challenging personal jurisdiction has co-defendants who proceed on the merits. But a defendant does not necessarily make a voluntary appearance if it does not formally join in the co-defendants’ appearance.47

Even after judgment has been entered in the foreign trial court, a defendant must be careful not to waive its personal jurisdiction defence for purposes of resisting recognition of the judgment in the United States. An action taken after the final judgment is entered in the foreign court may be considered a “voluntary appearance” for purposes of personal jurisdiction.48 For example, appealing a foreign judgment in the appellate courts of the foreign jurisdiction may waive a personal jurisdic-tion defence if the appeal addresses the merits.49

V. Trends in the Jurisprudence: Service of Process and Forum-Selection ClausesThere are additional complexities that may arise in a U.S. court’s scrutiny of the foreign court’s exercise of personal jurisdic-tion over the defendant. U.S. courts have also considered how service of process requirements in the foreign jurisdiction and the presence of a contractual forum-selection clause designating




if … the foreign court did not have personal jurisdiction over the defendant”); UFCMJRA § 4(b)(2) (“A court of this state may not recognize a foreign-country judgment if … the foreign court did not have personal jurisdiction over the defendant”).

12. See Restatement (Fourth) Foreign Relations Law § 483 (2018) (“A court in the United States will not recognize a judg-ment of a court of a foreign state if … the court that rendered the judgment did not have personal or subject-matter jurisdiction.”).

13. See id. at Reporter’s Notes 5, 6.14. See Linda Silberman, 1 TransnaT’l JoinT VenTures § 5:3

(2019) (“Lack of judicial jurisdiction of the rendering court is the most common defense to recognition or enforce-ment of foreign judgments.”); Ronald Brand, Recognition and Enforcement of Foreign Judgments, Fed. Jud. CTr. inT’l liTig. guide 17 (2012) (“Lack of jurisdiction over the defendant or the property involved in the judgment is the most common ground for refusal to recognize or enforce a foreign judgment.”).

15. Evans Cabinet Corp. v. Kitchen Int’l, Inc., 593 F.3d 135, 142 (1st Cir. 2010).

16. See, e.g., Kaupthing ehf. v. Bricklayers & Trowel Trades Int’l Pension Fund Liquidation Portfolio, 291 F. Supp. 3d 21, 31 (D.D.C. 2017) (assessing whether Icelandic court’s assertion of personal jurisdiction “comports with both the Constitution’s Due Process Clause and D.C.’s long-arm statute”); Shell Oil Co. v. Franco, 2005 WL 6184247, at *6 (C.D. Cal. Nov. 10, 2005) (“[U]nder both [California’s] Recognition Act and the Restatement, a foreign judgment is unenforceable if the foreign court’s personal jurisdiction over the defendant was not, at a minimum, in compliance with the requirements of traditional notions of fair play and substantial justice under the due process clause of the United States Constitution.”) (internal quotation marks and citation omitted); CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 296 A.D.2d 81, 95-96 (N.Y. App. Div. 1st Dep’t 2002), aff’d, 792 N.E.2d 155 (N.Y. 2003) (“in order to recognize and enforce the money judgments issued by the English High Court against defendants, plain-tiffs had to show that based upon the evidentiary materials presented to the English court, the law of this state would permit the exercise of personal jurisdiction over defend-ants”). See also Restatement (Fourth) Foreign Relations Law § 483, Reporter’s Note 5 (2018) (“Courts in the United States will not enforce a foreign judgment if the court rendering the judgment would have lacked personal jurisdiction over the person opposing recognition of the judgment under the minimum requirements of due process imposed by the Constitution.”). One of the authors and WilmerHale repre-sented Shell Oil Company in Franco.

17. See Restatement (Fourth) Foreign Relations Law § 483, Reporter’s Note 5 (2018). In some cases, U.S. courts have assessed the foreign court’s exercise of personal jurisdic-tion under the standards of the state long-arm statute governing personal jurisdiction over out-of-state defend-ants, which may (but do not always) impose more restric-tive standards than U.S. constitutional principles of due process. See Sung Hwan Co. v. Rite Aid Corp., 850 N.E.2d 647, 651 (N.Y. 2006) (“[A]bsent a finding of personal juris-diction under [the specific grounds enumerated in New York’s Recognition Act], our courts have typically looked to the framework of CPLR 302, New York’s long-arm statute, using it as a parallel to assess the propriety of the foreign court’s exercise of jurisdiction over a judgment debtor.”); Restatement (Fourth) Foreign Relations Law § 483, Reporter’s Note 5 (2018) (“A few cases go further [than U.S. constitutional principles] and also assess the foreign

also sometimes referred to as ‘indirect grounds of jurisdic-tion.’”); Audrey Feldman, Note, Rethinking Review of Foreign Court Jurisdiction In Light of the Hague Judgments Negotiations, 89 N.Y.U. L. Rev. 2190, 2193 (2014) (“Recognition and enforcement of judgments is largely based on so-called ‘jurisdictional filters,’ or review of the court of origin’s jurisdiction by the court where recognition and enforce-ment of a judgment is sought.”).

3. As an additional “jurisdictional filter”, a U.S. court will not recognise or enforce a foreign judgment if the foreign court did not have subject matter jurisdiction over the dispute. U.S. courts generally consider whether the foreign court prop-erly exercised subject matter jurisdiction under the law of the foreign jurisdiction. See Ronald Brand, Recognition and Enforcement of Foreign Judgments, Fed. Jud. CTr. inT’l liTig. guide 20 (2012) (“[W]hen ruling on the question of subject matter jurisdiction, U.S. courts apply the jurisdictional rules of the foreign court.”). Issues concerning subject matter juris-diction are outside the scope of this chapter, which is limited to personal jurisdiction.

4. The American Law Institute has proposed federal legisla-tion that would impose a single nationwide standard for the recognition and enforcement of foreign judgments. See American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute, avail-able at www.ali.org/publications/show/recognition-and-en-forcement-foreign-judgments-analysis-and-proposed-feder-al-statute/.

5. See Hague Conference on Private International Law, Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters – Status Table, available at www.hcch.net/en/instruments/conventions/status-table/?cid=137.

6. Thirty-five states and the District of Columbia have enacted a version of the UFMJRA or UFCMJRA. See National Conference of Commissioners on Uniform State Laws, Foreign-Country Money Judgments Recognition Act, avail-able at www.uniformlaws.org/committees/communi-ty-home?CommunityKey=ae280c30-094a-4d8f-b722-8dcd614a8f3e.

7. See Hilton v. Guyot, 159 U.S. 113 (1895).8. See id. at 202-03 (“[W]here there has been opportunity

for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceed-ings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.”).

9. See Restatement (Fourth) Foreign Relations Law § 481, Reporter’s Note 1 (2018) (under Hilton, “courts in the United States treated the recognition and enforcement of foreign judg-ments as governed by general common law”, but “[a]fter [the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tomkins and 1941 decision in Klaxon Co. v. Stentor Elec. Mfg. Co.], it has been accepted that, in the absence of a federal statute or treaty, State law governs the enforcement of foreign-country judgments.”).

10. See supra note 1.11. UFMJRA § 4(a)(2) (“A foreign judgment is not conclusive




23. UFCMJRA § 5(a); see also UFMJRA § 5(a) (setting out substantively similar bases for personal jurisdiction). The Uniform Acts also permit (but do not require) U.S. courts to recognise bases of personal jurisdiction other than those listed in Section 5 as sufficient to support recognition of a foreign court judgment. UFCMJRA § 5(b); UFMJRA § 5(b).

24. See Gary Born and Peter Rutledge, inT’l CiVil liTig. in u.s. CourTs 1116 (6th ed. 2018) (“These sections of the Act, unlike some common law decisions, clearly contem-plate application of U.S. standards of personal jurisdic-tion in deciding whether to enforce foreign judgments.”) (internal citations omitted).

25. See, e.g., Commissions Import Export, S.A. v. Republic of Congo, 118 F. Supp. 3d 220, 226-27 (D.D.C. 2015).

26. See Evans Cabinet Corp. v. Kitchen Int’l, Inc., 593 F.3d 135, 144 (1st Cir. 2010) (identifying infirmities with the U.S. district court’s application of the Quebec Civil Code).

27. See Fed. R. Civ. P. 44.1 (“A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testi-mony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determi-nation must be treated as a ruling on a question of law.”).

28. See Folex Golf Indus., Inc. v. O-Ta Precision Indus. Co., 603 F. App’x 576, 578 n.4 (9th Cir. 2015); AO Alfa-Bank v. Yakovlev, 21 Cal. App. 5th 189, 204 (Ct. App. 2018), as modified on denial of reh’g (Apr. 3, 2018).

29. Osorio v. Dole Food Co., 2009 WL 48189, at *11-12 (S.D. Fla. Jan. 5, 2009) (considering evidence submitted by defendant Shell Oil Company showing that the company “did not direct any … activity toward Nicaragua”).

30. Compare USI Sys. AG v. Gliklad, 176 A.D.3d 555, 555–56 (N.Y. App. Div. 1st Dep’t 2019) (declining to revisit the foreign court’s finding that an agreement was genuine); CIBC Mellon Trust Co. v. Mora Hotel Corp., 296 A.D.2d 81, 97-98 (N.Y. App. Div. 1st Dep’t 2002), aff’d, 792 N.E.2d 155 (N.Y. 2003) (declining to revisit the foreign court’s finding “as to how service had been made”) with de Fontbrune v. Wofsy, No. 5:13-CV-05957-EJD, 2019 WL 4345967 (N.D. Cal. Sept. 12, 2019) appeal docketed, No. 19-16913 (9th Cir. Sept. 30, 2019).

31. CIBC Mellon Trust Co. v. Mora Hotel Corp., 296 A.D.2d 81, 97-98 (N.Y. App. Div. 1st Dep’t 2002), aff’d, 792 N.E.2d 155 (N.Y. 2003).

32. UFCMJRA § 5(a); Chevron Corp. v. Donziger, 886 F. Supp. 2d 235, 280 (S.D.N.Y. 2012).

33. Nippon Emo-Trans Co. v. Emo-Trans, Inc., 744 F. Supp. 1215, 1218 (E.D.N.Y. 1990).

34. Id.35. Id. at 1221.36. Id. at 1225.37. Id.38. Shell Oil Co. v. Franco, 2005 WL 6184247, at *7 (C.D. Cal.

Nov. 10, 2005). Shell Oil Company obtained a declaratory judgment from the U.S. court that a Nicaraguan judgment was not enforceable, in part because the Nicaraguan court lacked personal jurisdiction.

39. See CIBC Mellon Tr. Co. v. Mora Hotel Corp. N.V., 296 A.D.2d 81, 93 (N.Y. App. Div. 1st Dep’t 2002), aff’d, 792 N.E.2d 155 (N.Y. 2003).

40. Id.41. UFCMJRA § 5(a).42. See, e.g., CE Design Ltd. v. HealthCraft Prods., Inc., 79 N.E.3d

325, 330 (Ill. App. Ct. 2d Div. 2017). 43. Id.

court’s jurisdiction against the standards set in the recog-nition forum’s long-arm statute.”).

18. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).19. See, e.g., Osorio v. Dole Food Co., 665 F. Supp. 2d 1307, 1324-26

(S.D. Fla. 2009), aff’d sub nom. Osorio v. Dow Chem. Co., 635 F.3d 1277 (11th Cir. 2011) (holding that defendants were not subject to personal jurisdiction in Nicaragua under applicable Nicaraguan law); Manches & Co. v. Gilbey, 646 N.E.2d 86, 87 (Mass. 1995) (“under English law the court there had jurisdiction over the parties”); Hager v. Hager, 274 N.E.2d 157, 161 (Ill. App. Ct. 4th Div. 1971) (“[T]he record here fails to disclose that the laws of Greece contain such provisions giving extra-territorial effect to its processes. … Thus, for ought that the record here shows, the Greek Court did not have personal jurisdiction of defendant.”); Restatement (Fourth) Foreign Relations Law § 483, Reporter’s Note 6 (2018) (“Some States also allow a person opposing recognition of a foreign judgment to raise defects in the rendering court’s personal jurisdiction under the local law of the foreign country.”); Restatement (Third) Foreign Relations Law § 482, Comment c (1987) (“If the rendering court did not have jurisdiction over the defendant under the laws of its own state, the judgment is void and will not be recog-nized or enforced in any other state.”). One of the authors and WilmerHale represented Shell Oil Company in Osorio.

20. See, e.g., Evans Cabinet Corp. v. Kitchen Int’l, Inc., 593 F.3d 135, 143 (1st Cir. 2010) (applying the personal jurisdiction stand-ards of both Quebec and Massachusetts, where the ques-tion of the applicable law was not a disputed issue in the case); ECO Heating Sys., Groningen, B.V. v. Hamilton Eng’g, Inc., No. 15-13193, 2017 WL 1806476, at *5 (E.D. Mich. May 5, 2017) (concluding that a Dutch court had personal jurisdiction over the defendant under Dutch law as well as under U.S. law, “[e]ven assuming, without deciding, that Michigan and federal law apply”); Commissions Import Export, S.A. v. Republic of Congo, 118 F. Supp. 3d 220, 226-28 (D.D.C. 2015) (holding that an English court had personal jurisdiction over Congo under English law, the law of the District of Columbia, and the standards of the federal Foreign Sovereign Immunities Act); Monks Own, Ltd. v. Monastery of Christ in the Desert, 168 P.3d 121, 126 (N.M. 2007) (where none of the enumerated bases for personal jurisdiction under New Mexico’s version of the UFMJRA are present, “the laws of both jurisdictions are applied, first the foreign law as to the foreign court’s jurisdiction, and then American constitutional principles regarding due process of law”); Canadian Imperial Bank of Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1253 (S.D.N.Y. 1995) (“According to the standards articulated in both New York law and the proof of Quebec law offered by Plaintiff CIBC, the Canadian court obtained valid in personam jurisdiction over Defendant Saxony.”).

21. See Shell Oil Co. v. Franco, 2005 WL 6184247, at *5 (C.D. Cal. Nov. 10, 2005) (“Under international concepts of jurisdic-tion to adjudicate, a foreign state may exercise jurisdiction through its courts to adjudicate with respect to a person or thing if the relationship of the nation to the person or thing is such as to make the exercise of jurisdiction reason-able.”) (internal quotations and citation omitted); Franco v. Dow Chem. Co., 2003 WL 24288299, at *6 (C.D. Cal. Oct. 20, 2003) (in addition to California’s Recognition Act, “under principles of comity among nations, lack of personal jurisdiction mandates rejection of a foreign judg-ment”) (international quotations and citation omitted); Restatement (Third) Foreign Relations Law § 482, Comment c (1987).

22. UFCMJRA § 5, Comment 1.




53. DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373, 386-88 (5th Cir. 2015); ECO Heating Sys., Groningen, B.V. v. Hamilton Eng’g, Inc., No. 15-13193, 2017 WL 1806476, at *5 (E.D. Mich. May 5, 2017); AO Alfa-Bank v. Yakovlev, 21 Cal. App. 5th 189, 201–03 (Ct. App. 2018), as modified on denial of reh’g (Apr. 3, 2018).

54. Louis Dreyfus Commodities Suisse, SA v. Fin. Software Sys., Inc., 703 F. App’x 79, 83 (3d Cir. 2017).

55. Id.56. Id.57. John Galliano, S.A. v. Stallion, Inc., 930 N.E.2d 756, 759 (N.Y.

2010).58. Bank of Montreal v. Kough, 430 F. Supp. 1243, 1247 (N.D.

Cal. 1977).59. AO Alfa-Bank v. Yakovlev, 21 Cal. App. 5th 189, 213, n.23

(Ct. App. 2018), as modified on denial of reh’g (Apr. 3, 2018) (citing cases). See also Cent. Petroleum Ltd. v. Geoscience Res. Recovery, LLC, 543 S.W.3d 901, 925 (Tex. App. 2018), review denied ( June 28, 2019).

60. See, e.g., D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 103 (2d Cir. 2006); TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 589 (7th Cir. 2005).

44. See Ved Nanda & David Pansius, 3 liTigaTion oF inTernaTional dispuTes in u.s. CourTs § 20:9 (2019).

45. ECO Heating Sys., Groningen, B.V. v. Hamilton Eng’g, Inc., No. 15-13193, 2017 WL 1806476, at *8 (E.D. Mich. May 5, 2017).

46. Id.47. See Chirila v. Conforte, 47 Fed. App’x 838, 842 (9th Cir. 2002)

(in U.S. litigation, attempt by co-defendants’ counsel to join English defendants in a motion to dismiss, without their consent, did not constitute a joinder and accord-ingly did not constitute an appearance by the English defendants).

48. de Fontbrune v. Wofsy, No. 5:13-CV-05957-EJD, 2019 WL 4345967 (N.D. Cal. Sept. 12, 2019).

49. Korea Resolution & Collection Corp. v. Hyuk Kee Yoo, 170 A.D.3d 485 (N.Y. App. Div. 1st Dep’t 2019); In re Transamerica Airlines, Inc., No. CIV.A. 1039-VCP, 2007 WL 1555734 (Del. Ch. May 25, 2007).

50. AO Alfa-Bank v. Yakovlev, 21 Cal. App. 5th 189, 201-03 (Ct. App. 2018), as modified on denial of reh’g (Apr. 3, 2018).

51. Folex Golf Indus., Inc. v. O-Ta Precision Indus. Co., 603 F. App’x 576, 578 (9th Cir. 2015). See also Franco v. Dow Chem. Co., 2003 WL 24288299, at *6-8 (C.D. Cal. Oct. 20, 2003) (concluding that the Nicaraguan court lacked personal jurisdiction over the defendant because plaintiffs had failed to serve the correct party).

52. AO Alfa-Bank v. Yakovlev, 21 Cal. App. 5th 189, 201-03 (Ct. App. 2018), as modified on denial of reh’g (Apr. 3, 2018).




David W. Ogden chairs WilmerHale’s Government and Regulatory Litigation Practice and handles major disputes including transborder litiga-tion and arbitration, and transborder regulation and enforcement. He served as the Deputy Attorney General of the United States and in other senior U.S. Justice and Defense Department roles. He is highly ranked by leading publications such as Chambers USA.

Wilmer Cutler Pickering Hale and Dorr LLP1875 Pennsylvania Avenue, NWWashington, DC 20006USA

Tel: +1 202 663 6440Email: [email protected]: www.wilmerhale.com

WilmerHale is a leading, full-service international law firm with 1,000 lawyers located throughout 13 offices in the United States, Europe and Asia. We offer one of the most experienced and accomplished interna-tional litigation practices in the world, and our lawyers are widely recog-nised as leading authorities in the field. Our clients include global corpo-rations, start-ups, individuals, non-profit entities, sovereign states, and international organisations that turn to us for advice and representation in connection with their most challenging and complex cross-border disputes, including a broad variety of cutting-edge matters. Our lawyers provide advice and strategic counseling and represent clients in national courts in the United States and Europe, and in international tribunals. Clients depend on WilmerHale to oversee and coordinate proceedings in Latin America, Africa and Asia, where strategic guidance, political and cultural insight, and experience with local counsel frequently make a world of difference in reaching a successful outcome.

www.wilmerhale.com

David W. Bowker chairs WilmerHale’s International Litigation Practice. He has a wealth of commercial and sovereign-related litigation and arbitration experience before international tribunals, state and federal trial courts, courts of appeal, and the US Supreme Court. Mr. Bowker teaches international litigation at UC Berkeley and Georgetown; he previously served in the State Department and on the National Security Council staff.



Karin Dryhurst is a counsel in the Government and Regulatory Litigation and White Collar and Investigations Practices at WilmerHale. She focuses on government investigations, enforcement actions, qui tam litigation, and cross-border matters, including advising multinational corporations on issues related to the enforcement of foreign judgments and attachment of foreign assets.



Apoorva J. Patel is a counsel in WilmerHale’s International Arbitration and International Litigation Practice Groups. Mr. Patel’s experience in complex cross-border disputes includes commercial and investor-state arbitration proceedings, international civil and commercial litigation in US courts, disputes involving foreign sovereigns and their instrumentalities, and court proceedings relating to the enforcement or challenge of international arbitration agreements and arbitral awards.





Chapter 524

Australia

MinterEllison Evan Goldman

Beverley Newbold

Australia

that provide substantial reciprocity for enforcement of Australian judgments.

The Foreign Judgments Act 1991 (Cth) (the FJA) provides for the recognition and enforcement of foreign judgments of superior courts (and particular inferior courts) of the jurisdictions spec-ified in the Foreign Judgments Regulations 1992 (Cth) on the basis of ‘substantial reciprocity’ for Australian judgments. The FJA presently applies to the 35 jurisdictions listed in the answer to question 1.1. Notable omissions include a number of Australia’s significant trading partners such as China, India, the USA, Thailand, Malaysia, Indonesia and Vietnam.

Judgments of the courts in jurisdictions to which the regime in the FJA does not apply must be enforced under common law principles (as modified by certain provisions of the FJA which apply to enforcement actions brought at common law).

2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?

Statutory regimeUnder the FJA, final or interlocutory money orders in civil proceedings and orders for the payment of compensation or damages to an injured party in criminal proceedings are consid-ered capable of recognition and enforcement.

Common lawAt common law, the determination must impose a personal obli-gation on the defendant and satisfy the further conditions set out below under question 2.3.

2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?

Statutory regimeOnly judgments for payment of an ‘amount of money’ that are ‘final and conclusive’ may be registered under the FJA.

Amount of moneyThere is capacity in the FJA for its operation to be extended to non-money judgments, however this has not in practice occurred. With the exception of certain New Zealand and Papua New Guinea tax matters, the definition in the FJA does not apply to amounts payable in respect of taxes, fines or other penalties.

Final and conclusiveA judgment may be ‘final and conclusive’ even if it is a default judgment or is under or subject to appeal. However, an

1 Country Finder

1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply.

Applicable Law/Statutory Regime

Relevant Jurisdiction

Corresponding Section Below

Common Law All jurisdictions Section 2Foreign Judgments Act 1991 (Cth)

Alberta, Bahamas, British Columbia, British Virgin Islands, Cayman Islands, Dominica, Falkland Islands, Fiji, France, Germany, Gibraltar, Grenada, Hong Kong, Israel, Italy, Japan, Korea, Malawi, Manitoba, Montserrat, Papua New Guinea, Poland, St Helena, St Kitts and Nevis, St Vincent and the Grenadines, Seychelles, Singapore, Solomon Islands, Sri Lanka, Switzerland, Taiwan, Tonga, Tuvalu, the United Kingdom, and Western Samoa

Section 2

Trans-Tasman Proceedings Act 2010 (Cth)

New Zealand Section 3

2 General Regime

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?

Foreign judgments may be enforced in Australia under the common law or under a statutory regime limited to jurisdictions


25MinterEllison


Process Act 1992 (Cth), or by the court’s own rules. The requisite jurisdiction will therefore generally only exist if:■ the defendant is present in the forum;■ the defendant has submitted to the jurisdiction of the

forum; or■ the court is otherwise an appropriate forum given the

subject matter of the case.

2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?

Statutory regimeA key procedural advantage of the FJA is that it provides for enforcement by registration, which is akin to recognition. Once registered, a foreign judgment may be enforced in the same way as a judgment of an Australian court.

Common lawIn order to be enforced at common law, the foreign judgment must be made a local judgment. This requires that the judgment creditor commence fresh legal proceedings in an Australian court for the judgment debt, in which the common law princi-ples referred to in answer to question 2.3 above must be satisfied.

The judgment of the Australian court is then enforceable in the same way as any other Australian judgment.

2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction.

Statutory regimeA judgment creditor for a judgment to which the FJA applies may apply to the Supreme Court of any Australian State or Territory for registration of the judgment within six years from the date of the judgment (or the date of the last judgment in any appeal proceedings). An authenticated copy of the judg-ment and, if the judgment is not in English, a certified transla-tion, must be provided with an application for registration under the FJA.

The remaining procedure for registration of the judgment, including formal requirements for the application and the evidence to be filed in support, varies between Australian juris-dictions based on requirements prescribed in each court’s rules.

If the requirements of the FJA are satisfied, the court must order that the judgment be registered. Once registered, the foreign judgment has the same force and effect as a judgment of the local court and can be enforced in the same way, including in other Australian States. A judgment creditor can recover the reasonable costs of registration and any interest due under the law of the original court up to the date of registration.

There is no requirement under the FJA or any of the appli-cable court rules that the judgment creditor give notice to the judgment debtor of their application for registration. However, if the judgment is registered, the applicable rules of each State and Territory court (and the Federal Court) require the judg-ment creditor to serve a notice of registration on the judgment debtor. The notice of registration must state the right of the judgment debtor to apply for an order setting aside the registra-tion and the deadline for such an application.

During the period within which the judgment debtor may apply to set aside registration, the judgment creditor cannot enforce the judgment, and evidence of service of the notice of registration is required before the judgment creditor can take steps to enforce the judgment.

Australian court may stay enforcement if it is satisfied that the judgment debtor has appealed or intends to appeal the judgment.

A foreign judgment cannot be registered if, at the date of the application, it has been wholly satisfied or cannot be enforced in the country in which it was made.

Common lawAt common law, the following requirements must be met:■ the foreign court must have exercised an ‘international’

jurisdiction recognisable by Australian courts;■ the judgment must be final and conclusive;■ the parties must be the same; and■ the judgment must be for a fixed sum (although certain

non-monetary judgments may be enforceable in equity).

JurisdictionThe relevant question is whether the foreign court exercised a jurisdiction recognised under Australian conflict of laws rules (not the rules of the foreign court). The jurisdiction of the foreign court over the judgment debtor may arise if the debtor:■ was present or resided in the foreign jurisdiction when the

foreign court’s jurisdiction was invoked; ■ voluntarily submitted by agreement (e.g. a prior contrac-

tual clause); or■ voluntarily submitted by appearance in the proceedings.

However, under section 11 of the FJA (which applies to enforcement actions at common law), the foreign court does not have jurisdiction merely because the debtor voluntarily appeared to protect or obtain the release of seized property or to contest the jurisdiction of the court.

Final and ConclusiveThe key test is whether the foreign court treats the judgment as res judicata of the dispute between the parties. As with the FJA regime, the existence or availability of an appeal does not affect the finality of the judgment, although an Australian court may stay enforcement of the judgment pending the outcome of an appeal in the foreign court.

Identity of the PartiesThe parties to the enforcement proceedings must be the same as those in the foreign judgment, although where the judgment is against several defendants, enforcement proceedings may be brought against any or all defendants.

Fixed sumAt common law, enforcement is only available of foreign judg-ments for the payment of a fixed or readily ascertainable sum of money. However, enforcement of non-money judgments may be available in equity (see: White v Verkouille [1990] 2 Qd R 191; Davis v Turning Properties Pty Ltd (2005) 222 ALR 676; Celtic Resources Holdings v Arduina Holding BV (2006) 32 WAR 276; and Independent Trustee Services v Morris (2010) 79 NSWLR 425).

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?

Statutory regimeThere are no requirements under the FJA for the Australian court to have jurisdiction over a defendant in order to recog-nise and enforce a foreign judgment under the statutory regime.

Common lawAt common law, the court must have jurisdiction over the defendant, either at common law, under the Service and Execution


26 Australia


entitled to enforcement in Australia. Given the principles of estoppel also effectively prevent a judgment debtor from raising any defence which was, or could have been, raised in the foreign proceedings, there are limited defences which can be raised by a judgment debtor in a common law action for enforcement of a foreign judgment.

There are four recognised defences in a common law action to enforce a foreign judgment:■ the foreign judgment was obtained by fraud – Larnach v

Alleyne (1862) 1 W & W (E) 342;■ the foreign judgment is contrary to public policy – Re

Macartney [1921] 1 Ch 522;■ the foreign court acted contrary to natural justice; and■ the foreign judgment is penal or a judgment for a revenue

debt (although the unenforceable part of an award of damages may be severed from the enforceable part if it is practical to do so) – Schnabel v Lui [2002] NSWSC 15.

2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters?

Enforcement of foreign judgments at common law and under the FJA is limited to judgments for the payment of a liqui-dated sum. There may be specific rules for the recognition and enforcement of judgment in rem (i.e. judgments directly against property) or judgments that affect the status of a person, for example under family law statutory provisions.

The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) applies specifically to anti-trust proceedings in foreign courts and gives the Commonwealth Attorney-General discretionary powers which can prevent the recognition and enforcement of foreign judgments in relation to anti-trust matters in Australia in whole or part.

2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties?

Statutory regimeThe court has discretion to set aside the registration of a foreign judgment if the matter in dispute has been the subject of a final and conclusive judgment by another court having jurisdiction in the matter (section 7(2)(b) of the FJA). This provision is not limited to conflicting local judgments of Australian courts.

A judgment to which the FJA applies, or would have applied if it were a money judgment, must be recognised in any Australian court as conclusive between the parties to it in all proceedings founded on the same cause of action and may be relied on by way of defence or counter-claim in any such proceedings (section 12(1) of the FJA). This applies whether or not the foreign judg-ment is, or can be, registered under the FJA, but does not apply where registration of a judgment has been set aside or could be set aside on any of the following grounds:■ the courts of the country of the original court had no juris-

diction in the case;■ if the judgment debtor was the defendant in the proceed-

ings in the original court, that the judgment debtor did not receive notice of the proceedings in the original court in sufficient time to enable the judgment debtor to defend the proceedings and did not appear;

■ the judgment was obtained by fraud;■ the judgment has been reversed on appeal or otherwise set

aside in the courts of the country of the original court; or

Common lawAt common law, a judgment creditor must bring fresh proceed-ings in accordance with the rules of each State or Territory, usually by ‘originating application’ or ‘originating motion’. There are two grounds on which the action can be brought. The judgment creditor can:■ sue for the judgment amount as a debt in the Australian

court; or■ further or alternatively, sue on the original cause of action

and rely on the foreign judgment as creating an estoppel preventing the judgment debtor from raising any defence which was, or could have been, raised in the foreign proceedings.

The court rules applicable in the jurisdiction in which the common law proceedings are commenced will apply to the proceeding.

2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made?

Statutory regimeA judgment debtor may apply to the court in which the judgment was registered to have the registration set aside within the period specified by that court. If the judgment debtor can satisfy the court that any of the following matters apply, the court has no discretion and must set aside registration of the judgment:■ the judgment is not, or has ceased to be, a judgment to

which the FJA applies;■ the judgment was registered for an amount greater than

the amount payable under it at the date of registration (although the judgment creditor may apply for re-registra-tion in the correct amount);

■ the judgment was registered in contravention of the FJA (although if registration is set aside solely on the basis that the judgment was not enforceable in the country of the original court at the date of the application for registra-tion, the creditor can apply for re-registration if and when the judgment becomes enforceable in that country);

■ the courts of the country of the original court had no juris-diction in the case (section 7(3) of the FJA sets out circum-stances in which the foreign court is deemed to have jurisdiction);

■ if the judgment debtor was the defendant in the proceed-ings in the original court, that the judgment debtor did not receive notice of the proceedings in the original court in sufficient time to enable the judgment debtor to defend the proceedings and did not appear;

■ the judgment was obtained by fraud;■ the judgment has been reversed on appeal or otherwise set

aside in the courts of the country of the original court;■ the rights under the judgment are not vested in the person

who made the application for registration;■ the judgment has been discharged;■ the judgment has been wholly satisfied; or■ enforcement of the judgment would be contrary to public

policy.The court also has a discretion to set aside the registration

if the judgment debtor establishes that the matter in dispute in the proceedings in the original court had, before the date of the judgment in the original court, already been the subject of a final and conclusive judgment by another court having jurisdiction.

Common lawA final and conclusive money judgment made by a court having jurisdiction recognised by the Australian courts is prima facie


27MinterEllison


requirements of the application. This has the effect that the rules vary between the State and Territory courts.

Common lawAt common law, the doctrine of precedent means that decisions of the courts in one State or Territory are not technically binding in others. This has the potential to lead to divergence in the common law principles applicable in each Australian jurisdic-tion in the absence of the binding authority of the High Court of Australia (Australia’s highest court). In practice, these diver-gences are relatively rare given that State and Territory courts consider that they ought to follow the intermediate appellate authority of the other States and Territories (and the Federal Court) unless that authority is clearly incorrect.

2.13 What is the relevant limitation period to recognise and enforce a foreign judgment?

Statutory regime The limitation period under the FJA is within six years from the date of judgment (or the date of the last judgment in any appeal proceedings) (section 6(1) of the FJA).

Common lawThe limitation period for a common law action to enforce a foreign judgment is determined by the relevant State and Territory law relating to limitation periods.

3 Special Enforcement Regimes Applicable to Judgments from Certain Countries

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 be recognised and enforceable under the respective regime?

The Trans-Tasman Proceedings Act 2010 (Cth) deals with recognition and enforcement of judgments of New Zealand courts and tribunals.

Under section 4 of the Trans-Tasman Proceedings Act 2010 (Cth), a judgment includes any award decree or order of the court or tribunal, notwithstanding that it is given in a primary proceeding or an inter-locutory proceeding, or if it is a money or non-money judgment.

To be enforceable under the Act, a New Zealand judgment must be a ‘registrable NZ judgment’ (section 68). A registrable NZ judg-ment is generally one which is final and conclusive and either:■ given in a civil proceeding by a New Zealand court or New

Zealand tribunal prescribed by the Trans-Tasman Proceedings Regulation 2012 (Cth);

■ given in a criminal proceeding by a New Zealand court and wholly consists of a requirement to pay an injured party a sum of money by way of compensation, damages, or reparation;

■ an order for the payment of expenses incurred by a witness made under the Act or the Evidence Act 2006 (NZ) by a New Zealand court or tribunal;

■ given in a New Zealand market proceeding; ■ given in a criminal proceeding by a New Zealand court

and wholly consists of an imposition of a regulatory criminal fine and meets the conditions prescribed in the Regulation; or

■ registered in a New Zealand court under the Reciprocal Enforcements of Judgments Act 1934 (NZ).

Some judgments are excluded from the Act, including non-money judgments, judgments relating to the care, control

■ enforcement of the judgment would be contrary to public policy.

If there is a conflicting domestic court judgment between parties relating to the same issue, it would likely be regarded as contrary to public policy to enforce the foreign judgment.

Common lawAt common law, if there is a conflict between a foreign judg-ment and an earlier judgment of an Australian court on the same matter and between the same parties, the local judgment will be preferred – Vervaeke v Smith [1983] 1 AC 145.

However, a foreign judgment which has been satisfied gives rise to a cause of action estoppel in any local Australian proceedings pending in relation to the same parties on the same cause of action, provided the parties are identical and the causes of action and heads of damage are the same – In the Marriage of Miller and Caddy (1986) 84 FLR 129. However, it is not necessary that the applicable law be the same or that the foreign proceedings were instituted before the local proceedings commenced.

Such a judgment may also give rise to issue estoppel which prevents the reopening of an issue previously litigated between the same parties. For this to occur, the decision must also be final and both the parties and the issue must be the same – Armacel v Smurfit Stone Container Corp (2008) 248 ALR 573.

However, an Australian court will be cautious in applying the doctrine of issue estoppel where the issue in question was not fully litigated or considered by the foreign court.

2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties?

Registration of a foreign judgment cannot be set aside on the basis of conflicting local law.

Australian courts have applied the principle enunciated by Justice Blackburn in Godard v Gray (1870) LR 6 QB 139 that a foreign judg-ment cannot be refused recognition and enforcement on the basis that the foreign court mistook either the facts or the law.

Recognition and enforcement at common law and under the statutory regimes will be refused if it would be contrary to Australian public policy, but this is a narrow defence which only applies to cases involving fundamental questions of moral and ethical policy, fairness of procedure and illegality.

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?

No special rules apply where a foreign judgment purports to apply Australian law, and Australian courts will not refuse recognition and enforcement of a foreign judgment based on an error on the merits or a misapplication of local law.

2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain.

Statutory regime The FJA provides a uniform regime for the recognition and enforcement of certain foreign judgments, but leaves open for selection the State and Territory court in which action is commenced to determine the formal and procedural


28 Australia


action, the judgment has the same force and effect as a local judgment.

The rules of each State or Territory court provide a statutory regime for the enforcement of judgments (see UCPR 1999 (Qld), UCPR 2005 (NSW), Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), Rules of the Supreme Court 1971 (WA), Supreme Court Rules 1987 (NT), Supreme Court Civil Rules 2006 (SA), Court Procedures Rules 2006 (ACT) and Supreme Court Rules 2000 (Tas)).

Generally, the judgment creditor must make an application for an enforcement order, which may take the form of: ■ an order for the seizure and sale of real and personal prop-

erty in which the judgment debtor has an interest;■ a garnishee order;■ an instalment order authorising the satisfaction of the

judgment debt in instalment payments;■ a charging order against the judgment debtor’s interest in

any stocks, shares, bonds, debentures, etc.;■ money in court and stop orders;■ an order appointing a receiver;■ committal of the judgment debtor; or■ sequestration of the judgment debtor’s property.

5 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.

In First Property Holdings v Nyunt [2019] NSWSC 249, an applica-tion was made in the Supreme Court of New South Wales to set aside the registration of a judgment made by the High Court of the Republic of Singapore.

The Supreme Court dismissed the judgment debtor’s applica-tion and in doing so dealt with a number of grounds for setting aside registration under the FJA, including that the judgment debtor did not have notice of the original proceedings, that the judgment was not final and conclusive, and that the judgment was obtained by fraud or was contrary to public policy. The decision is most significant because it confirms that referral of a dispute to a foreign court under a broad and non-exclusive contractual clause will amount to voluntary submission by the judgment debtor to that court’s jurisdiction, and will be sufficient to defeat any claim that the foreign court did not have jurisdiction.

In Suzhou Haishun Investment Management Co v Zhao [2019] VSC 110, an application was made in the Supreme Court of Victoria for summary judgment in debt, based upon three judgments of the Chinese People’s Court of Huqiu District, Suzhou City.

The judge considered whether those judgments would be enforceable at common law, specifically whether the interest rate applied to the debt could render the judgment penal and whether the foreign court had jurisdiction notwithstanding that the judg-ment debtor was residing in Australia at the time of judgment. Although the court ultimately found against the judgment debtor on all grounds, this decision is notable because it comprehen-sively outlines the current authorities and common law position on both points. On the issue of whether a judgment is penal, the court emphasised the requisite ‘public element’ required for and possible severability of any punitive aspect of the judgment debt.

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 or

or welfare of a child, judgments imposing a civil pecuniary penalty, and orders relating to probate or letters of administra-tion (section 66(2) of the Trans-Tasman Proceedings Act 2010 (Cth)).

3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement?

A judgment registered under the Trans-Tasman Proceedings Act 2010 (Cth) has the same force as an Australian judgment and can be enforced as if the judgment had been given by an Australian court (section 74(1) of the Trans-Tasman Proceedings Act 2010 (Cth)).

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.

An application for registration must be made within six years after the day the judgment was given or the day of the last judg-ment in any appeal proceedings (section 67(5) of the Trans-Tasman Proceedings Act 2010 (Cth)).

A judgment creditor must make an application for registration in the form required by the Trans-Tasman Proceedings Regulation 2012 (Cth) (section 17, Form 5).

An Australian court must, on an application under section 67 of the Act, register the New Zealand judgment. The judg-ment creditor must then serve a notice of registration within 15 working days after registration (section 73 of the Trans-Tasman Proceedings Act 2010 (Cth)).

A registered New Zealand judgment can be enforced in Australia as soon as notice of registration is given. The judg-ment creditor does not need to wait until the period for applying to set aside registration has expired. However, if notice of regis-tration has not been given, the judgment creditor cannot take steps to enforce the judgment for a period of 45 working days (section 73(1) of the Trans-Tasman Proceedings Act 2010 (Cth)).

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 special regime? When can such a challenge be made?

Registration must be set aside if under section 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth):■ enforcement of the judgment would be contrary to public

policy;■ the judgment was registered in contravention of the Act; or■ for judgments relating to immovable property or judgments

given in rem in relation to movable property, the property was not situated in New Zealand at the time of the proceeding.

An application to set aside registration must be made within 30 days after the judgment debtor is given notice of registration (section 72(3) of the Trans-Tasman Proceedings Act 2010 (Cth)).

4 Enforcement

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

After registration under a statutory regime or the foreign judg-ment becomes a judgment of a local court in a common law


29MinterEllison


award in Australia should be aware of the distinction between the statutory regime, the common law system, and any special regimes for the enforcement of non-money judgments and ensure that they take steps under the appropriate regime. Clients should also consider the appropriate State or Territory in which to seek recognition and enforcement and make sure they are familiar with the particular rules and procedures that apply in that jurisdiction.

Failure to comply with applicable procedural rules, for example service of a notice of registration in the correct form, can result in enforcement of a foreign judgment being refused.


30

Beverley Newbold is a Partner at MinterEllison Sydney. She is a recognised litigator and dispute resolution specialist dealing in international and large domestic corporate disputes, class actions, and regulatory and compliance investigations.Beverley’s major court proceedings include representing Qantas in Federal Court proceedings against Rolls Royce over the headline Airbus A380 engine failure. In the class action space, Beverley has also defended a number of shareholder class actions brought against, among others, Billabong, Bellamy’s, and directors of the MFS group and Kagara Limited (in liq), involving allegations of allegedly misleading market guidance.Beverley brings significant cross-border disputes experience to her practice, including international arbitrations, drawing upon several years’ experience with the top-five global firm, Freshfields, in London. She has provided expert evidence on the issue of Australian enforcement of foreign judgments in foreign court proceedings. She has a Masters of Law in International Business Regulation, Litigation and Arbitration from New York University.

MinterEllisonLevel 40 Governor Macquarie Tower1 Farrer PlaceSydneyAustralia

Tel: +61 2 9921 4894Email: [email protected]: www.minterellison.com

MinterEllison is one of the largest full-service law firms in the Asia Pacific region. With more than 200 partners and 700 legal staff working throughout Australia and in Hong Kong, the People’s Republic of China, Mongolia, New Zealand and the UK, MinterEllison supports leading industry and govern-ment clients, delivering practical, commercial solutions and helping clients achieve successful business outcomes.Our focus is multi-disciplinary and industry focused. Our lawyers work across industry sectors, specialist legal areas and offices to add value – offering clients the benefits of their industry knowledge, business acumen and global experience.

www.minterellison.com


Australia

Evan Goldman is a Senior Associate at MinterEllison Brisbane. Evan is a versatile commercial disputes specialist, with particular expertise in cross-border disputes. Evan’s capabilities include project management of all stages of complex litigation and court or arbitration strategy and drafting and advising on dispute resolution clauses in contracts with international counterparties.Evan acted in successful Supreme Court trials for an Indonesian subsidiary of Thiess, involving principles of private international law, reception of expert opinion on the operation of a foreign statutory regime and urgent interlocutory relief restraining an opposing party in the foreign jurisdiction. Evan’s experience also includes acting for a leading global mining group in an international arbitration dispute with a Luxembourg-based steel group regarding shipping of coal from Queensland mines to European ports, as well as acting in the Queensland Supreme Court in a joint venture dispute regarding the exploration of petroleum in Indonesia.

MinterEllisonWaterfront Place1 Eagle StreetBrisbaneAustralia

Tel: +61 7 3119 6422Email: [email protected]: www.minterellison.com



Chapter 6 31

Austria

Konrad Partners Philipp A. Peters

Dr. Christian W. Konrad

Austria

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention).

All parties to the Convention.

Questions 2.8, 3.1 and 3.3.

Multilateral conventions on family matters and the civil status of individuals:Hague Conventions on matters of family law and civil status of 1958, 1961, 1980, 1996, 2000 and 2007.

All parties to the Conventions.

Questions 2.8, 3.1, 3.3 and 3.4.

Convention on the Recognition of Decisions Relating to the Validity of Marriages.

Turkey and the Netherlands (to the extent that this Convention is not superseded. by special regimes, such as EU Regulations).

Question 2.8.

European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children.


Question 2.8.

Multilateral conventions on the carriage of passengers and goods:CMR, CIM, CIV, COTIF, Multilateral Convention on the Registration of Invalid Navigation Vessels.

All parties to the Conventions.


1 Country Finder



Relevant Jurisdiction(s)


Domestic provisions:Austrian Enforcement Act (AEA).

All jurisdictions (to the extent that AEA provisions are not super-seded by special regimes).

Section 2, ques-tion 3.1 and section 5.

Austrian Insolvency Code (IC).

All jurisdictions (to the extent that IC provisions are not superseded by special regimes).

Questions 2.8 and 3.1.

Law on Non-Contentious Matters (ALNM).

All jurisdictions (to the extent that ALNM provisions are not super-seded by special regimes).

Questions 2.8, 2.9, 3.1, 3.3 and 3.4.

Multilateral conventions on litigation and arbitration:Convention on Civil Procedure (1954 Hague Convention).


Question 2.8.

Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (2007 Lugano Convention).

Iceland, Norway and Switzerland.

Questions 2.8, 2.10, 3.1, 3.2 and 3.4.


32 Austria


executory title may be enforced in Austria while still being subject to appellate proceedings in its jurisdiction of origin.

Secondly, such foreign executory titles must be sufficiently specific, i.e., the content of their orders must be determinable without any further assessment. Such is the case, for example, with an executory title providing for payment in a foreign currency.

Moreover, an international treaty or domestic regulation must expressly stipulate the principle of reciprocity with respect to the enforcement of executory titles between the state of origin of the relevant foreign executory title and Austria. Notably, Austrian enforcement courts are not authorised to assess the actual practice of enforcing executory titles in the particular state. Reciprocity must therefore be warranted by international treaty and/or domestic regulations and not just by factual prac-tice. However, the requirement of reciprocity does not apply to executory titles regarding a person’s civil or marital status.

Section 407 AEA provides additional requirements. Notably, its scope of application is different from Section 406 AEA, as it is confined to judgments, settlements and public deeds. Executory titles falling within the scope of this provision must originate in a state whose authorities would be competent to issue such documents and deeds not just within their jurisdic-tion but also under Austrian law on international jurisdiction. Furthermore, they must stem from proceedings in which the document initiating action (e.g., the claim or the request for arbi-tration) has been served upon the party opposing the enforcea-bility of the executory title in Austria (i.e., the defendant). The opposing party must thus have been put in a position to make use of its procedural rights before the executory title has been rendered. Finally, Section 407 establishes the requirement that the title may not be subject to any further challenge or appellate proceedings suspending enforceability in its country of origin. The fulfilment of this requirement must be confirmed by the authority which has rendered the title.

The party seeking leave for enforcement must submit the original executory title or a copy issued by the same authority which rendered the foreign title. Furthermore, a full certified translation of the writ of execution must be submitted.

Even if all preconditions enshrined in Sections 406 and 407 AEA are fulfilled, a foreign executory title may not be declared enforceable if there are any grounds for refusal as enumerated in Section 408 AEA. These grounds are discussed in more detail in our answer to question 2.7.


With respect to foreign executory titles, Section 409 AEA provides for the jurisdiction of the district courts. In particular, the creditor has to request leave for enforcement from the district court at the seat or domicile of the debtor. However, where the creditor prefers to combine its request for leave for enforcement with a request for enforcement authorisation, Section 409 AEA effectively allows a choice between the district court at the seat or domicile of the debtor and the district court within whose territorial jurisdiction the assets of interest for the purpose of enforcement are located.


Under the rules of the AEA, the enforcement of a foreign

Bilateral treaties:Bilateral treaties and Austrian regu-lations regarding individual jurisdic-tions with respect to the recognition and enforcement of judgments and/or arbitral awards.

Belgium, British Columbia, Croatia, Finland, France, Germany, Israel, Italy, Kosovo, Liechtenstein, Luxembourg, Montenegro, North Macedonia, Norway, Serbia, Slovenia, Spain, Sweden, Switzerland, the Netherlands, Tunisia, Turkey and the United Kingdom.

Questions 2.8, 2.9, 2.10, 3.1, 3.2, 3.3 and 3.4.

2 General Regime


The general regime governing the recognition and enforcement of foreign judgments in Austria is enshrined in Sections 403 et seqq. of the Austrian Enforcement Act (AEA). Pursuant to Section 416(1) AEA, these provisions apply to foreign executory titles to the extent that they are not superseded by international treaties or the law of the European Union.


The scope of application of the aforementioned domestic provi-sions is not confined to foreign judgments. It extends to all foreign executory titles. Foreign executory titles are defined in Section 403 AEA as documents and deeds drawn up abroad. Documents and deeds issued by Austrian authorities abroad or by agents of such authorities are considered domestic. Notably, foreign executory titles need not be of the same nature as any Austrian domestic executory title as enumerated in Section 1 AEA, i.e., need not fit into any of the categories specifically known to Austrian law in order to be capable of recognition and enforcement. However, they must be regarded as executory titles in their jurisdictions of origin.

This broad definition encompasses all foreign judgments, orders, interim measures, court settlements, public deeds, decla-rations of commitment issued by foreign notaries and arbitral awards issued by arbitral tribunals having their seat abroad.

The term “judgments” includes partial judgments, judgments by default and complementary judgments.


To be granted leave for enforcement, i.e., to be declared enforce-able in Austria, pursuant to Section 406 AEA, foreign executory titles must satisfy the following basic conditions.

Firstly, they must be enforceable in their jurisdiction of origin. Notably, their enforceability may precede their entry into legal force, which means that an (provisionally) enforceable foreign


33Konrad Partners



The debtor may challenge the leave for enforcement where: (i) any of its preconditions has not been met; (ii) the debtor was not provided with an opportunity to participate in the initial (foreign) proceedings resulting in the executory title due to procedural irregularities; (iii) the leave for enforcement would result in the enforcement of an action which is not admissible or not enforceable under Austrian law (for example, the enforce-ment of an action constituting a criminal offence under Austrian law); and (iv) the recognition or enforcement would effectively violate the fundamental principles of Austrian law (ordre public).


With a view to specific subject matters, Sections 403 et seqq. AEA are often superseded by specific domestic provisions, international treaty law and European legislation.

For example, Sections 91a to 91d of the Law on Non-Contentious Matters (ALNM) govern the recognition of foreign decisions on adoption. Foreign decisions on certain matrimonial matters related to the validity, persistence and end of marriage are recognised in Austria in accordance with Sections 97 to 100 ALNM. Similarly, Sections 112 to 116 relate to the enforcement of foreign decisions on parental custody and the parental right of access to the child. Sections 131a to 131g ALNM govern the recognition and enforcement of foreign decisions on the protection of vulnerable adults and their prop-erty. It should be noted that the provisions of the ALNM apply only to the extent that they are not superseded by interna-tional treaties or EU legislation. In addition, Section 240 of the Insolvency Code (IC) applies to the recognition of foreign insol-vency proceedings and the decisions made within their frame-work. Notably, the wording of all these legal provisions refers to “foreign decisions” as their object. This term is narrower than that of “documents and deeds” as used in the AEA. Finally, Section 614 of the Austrian Code of Civil Procedure (ACCP) governs the recognition and enforcement of arbitral awards (though referring further to the AEA, international treaties and instruments of EU law). All these domestic provisions are leges speciales with respect to Sections 403 et seqq. AEA and thus super-sede the general framework of the AEA.

Pursuant to Section 416 AEA, European law and international treaties also supersede Sections 403 et seqq. AEA to the extent that they govern the recognition and enforcement of executory titles differently. This is relevant for the Hague Conventions of 1954, 1958, 1961, 1980, 1996, 2000 and 2007 referred to in the answer to question 1.1.

The same applies for the following multilateral treaties to which Austria is a party:■ Convention on the Contract for the International Carriage

of Goods by Road (CMR) of 19 May 1956.■ Convention on the Recognition and Enforcement of Foreign

Arbitral Awards of New York 1958 (New York Convention).■ International Convention Concerning the Carriage of

Passengers (CIM ).■ International Convention Concerning the Carriage of

Passengers and Luggage by Rail (CIV ).■ Multilateral Convention on the Registration of Invalid

Navigation Vessels concluded at Geneva on 25 January 1965.■ Convention Concerning International Carriage by Rail

(COTIF ).

executory title is contingent upon the application and issuance of a leave for enforcement. By means of this procedure it can be avoided that different courts decide differently on whether to grant the execution on the basis of a foreign title. Once the leave for enforcement has become effective, the executory title is declared enforceable once and for all. It is to be noted that such request for a leave for enforcement can be submitted together with an actual request for enforcement authorisation.


A party seeking enforcement of a foreign executory title has to first request a leave for enforcement from the competent court (see the answer to question 2.4 for information regarding the territorial jurisdiction of the district courts). The party may combine such a request with a request for an enforcement authorisation. Where this is the case, the court will decide on both issues simultaneously.

The court will examine the aforementioned grounds for granting leave for enforcement (see the answer to question 2.3) as well as the grounds for refusing enforcement in ex parte proceedings, and will decide based only on documents, i.e., without conducting a hearing or otherwise involving the debtor. This procedure was designed to grant the creditor an advantage when initiating and executing enforcement.

Both parties may raise an appeal against the district court’s order on the request for leave for enforcement. Since the first instance proceedings are conducted without the debtor being granted the right to be heard, Section 411(2) no. 2 allows for the debtor to introduce new facts in the course of such appeal proceedings. Notably, the debtor is required to raise all grounds for refusing the creditor’s requests already with the appeal. Any grounds not invoked in the appeal will be precluded with the exception of grounds that the debtor could not have been aware of. The competent regional court will hear the appeal in inter partes proceedings. Generally, an appeal may be filed within four weeks from the day the decision on the request for leave for enforcement is served upon the debtor personally or at his habitual residence. However, if the debtor’s seat or habitual resi-dence is not in Austria and the appeal is their first chance to participate in the proceedings, this time period amounts to eight weeks. Nonetheless, this does not affect the time period for the creditor’s reply to the appeal, which will not exceed four weeks.

As discussed above, a leave for enforcement and an enforce-ment authorisation may be ordered by an Austrian court regard-less of whether the respective executory title is subject to appel-late proceedings in its jurisdiction of origin. Therefore, the debtor may request the respective enforcement court of second instance to stay the appellate proceedings until the executory title becomes final and binding in the jurisdiction in which it has been rendered. During such a stay of the proceedings, the cred-itor may have the debtor’s assets seized but not liquidated. The Austrian enforcement court may order the creditor to provide security for any permitted enforcement measure the creditor takes during the stay.

Section 414(1) AEA allows for the debtor to request the Austrian enforcement court to set aside or amend the leave for enforcement if the executory title has been set aside or amended in its jurisdiction of origin. The debtor may also combine this request with a request to stop or limit the enforcement measures.

The regional court’s decision on the appeal may, in turn, be brought before the Austrian Supreme Court. Notably, however, the Austrian Supreme Court’s review is limited to points of law and issues of material importance to the uniformity, certainty and development of the Austrian legal order.


34 Austria


executory title unless it amounts to a breach of the fundamental principles of substantive or procedural Austrian law. This is a common provision. It is expressly stipulated in Section 408 no. 3 AEA, Article 45(1)(a) of the Brussels I Regulation (recast), Articles 22(a) and 23(a) of the Brussels II Regulation, Article 34 no. 1 of the Lugano Convention as well as in many of Austria’s bilateral treaties on the recognition and enforcement of execu-tory titles.


Foreign executory titles applying Austrian law are enforceable in Austria under the general conditions applicable to all foreign executory titles as set forth above.


Austria is a federal republic consisting of nine regional states (Bundesländer), each with a parliament competent to pass laws within the scope of subject matters that the Federal Constitution prescribes. The remaining subject matters are regulated by the Austrian federal parliament, the National Council.

The AEA is a federal law enacted by the National Council, and it applies equally in all nine regional states.


In general, a recognised and enforceable foreign executory title has the same legal effects as a domestic executory title. However, contrary to the approach typically taken in common law juris-dictions, in Austria, limitation periods are an issue of substan-tive and not procedural law; thus, the limitation period of an executory title is governed by the law applicable to the merits of a dispute. As a consequence, the law governing the limitation period of the executory title may be foreign. Pursuant to Section 1478 of the Austrian Civil Code (ACC ), where Austrian law is applicable, judgments may be enforced within 30 years from the date on which the judgment became final and binding.



Section 240 IC provides that effects of insolvency proceedings opened abroad shall be recognised in Austria if the centre of the debtor’s main interests is situated in that foreign state, the insolvency proceedings are similar to insolvency proceedings in Austria (in particular, if Austrian creditors are treated equally with creditors from the state where the proceedings are taking place) and none of the grounds for rejecting recognition apply.

With respect to the matters governed by the ALNM, the preconditions for recognising a foreign decision on adoption or

■ Convention on the Recognition of Decisions Relating to the Validity of Marriages of 8 September 1967. Austria, the Netherlands and Turkey are members to this treaty.

■ European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children.

In addition, Austria has concluded a number of bilateral trea-ties governing the recognition and enforcement of foreign exec-utory titles; namely with: Belgium; Finland; France; Germany; Israel; Italy; Liechtenstein; Luxembourg; the Netherlands; Norway; Sweden; Switzerland; Spain; Tunisia; Turkey; and the United Kingdom. An Austrian domestic regulation governs the recogni-tion and enforcement of judicial decisions and arbitral awards issued in the Canadian province of British Columbia. Many of these trea-ties, i.e., those concluded with countries which have since acceded to the European Union, have been superseded by EU law.

In 1960, Austria signed a bilateral treaty on the enforce-ment of commercial arbitration awards with Yugoslavia, which Austria continues to consider applicable with respect to Croatia, Montenegro, North Macedonia, Serbia and Slovenia.


Sections 91a(2) no. 3 and 97(2) no. 3 ALNM apply to foreign deci-sions, on adoption and on matrimonial matters related to the validity, persistence, and end of marriage, respectively. They provide that Austrian authorities shall refuse to recognise a decision that is irrec-oncilable with an Austrian decision or with an earlier foreign decision fulfilling the preconditions for recognition in Austria.

Similarly, Section 113(1) no. 3 ALNM governs the enforcement of foreign decisions on parental responsibilities and provides that enforcement shall be refused if such a decision is irreconcilable with a subsequent Austrian decision or a subsequent foreign decision if such decision fulfils the preconditions for recognition in Austria. The same is true with respect to Sections 131b and 131e ALMN, which govern the recognition and enforcement of foreign decisions on the protection of vulnerable adults and their property.

Bilateral treaties typically provide that recognition of a foreign executory title may be refused due to a pending domestic proceeding on the same subject matter which was commenced in Austria before it was commenced in the other state, e.g., Article 5 no. 3 of the bilateral treaty between Austria and Israel and Article 4 no. 3 of the respective treaty with Tunisia.

The AEA itself does not address the circumstance of an earlier executory title as a separate ground for rejecting the cred-itor’s request for a leave for enforcement. However, pursuant to Section 411(2) in conjunction with Section 230(3) ACCP, the res judicata effect of an executory title applies at any stage of the proceedings conducted in Austria, i.e., it must be considered even by an appellate court reviewing a conflicting first instance decision. Recently, the Austrian Supreme Court expressly confirmed that this also applies with respect to recognised foreign executory titles (see also question 5.1 below).


A conflict with Austrian law does not in itself constitute a ground for refusing the recognition or enforcement of a foreign


35Konrad Partners


must be accompanied by: (i) the respective decision and a trans-lation thereof; (ii) a document showing that it has entered into legal force in its jurisdiction of origin; and (iii) proof that it was served. Again, where the decision resulted from proceedings in the absence of the opponent, the party seeking recognition must show that the opponent was served the document with which the foreign proceedings were commenced or that the opponent agreed to the proceedings in his or her absence. An appeal must be filed within one or two months depending on whether the habitual residence of the opponent is abroad or not.

Section 131c ALNM provides for a similar procedure for the recognition of foreign decisions on the protection of individuals and the protection of vulnerable adults and their property. With respect to enforcement, in addition, the applicant has to furnish proof that the decision is enforceable in the state of its origin.

The bilateral and multilateral treaties listed in the answer to question 1.1 typically provide that the enforcement proceed-ings shall be governed by the law of the state where enforcement is sought, with the exception of individual procedural matters governed by the respective treaty (see, e.g., Article 18(1) COTIF, Article 28 of the Hague Convention of 1996, Article 27 of the Hague Convention of 2000, and Article 12(1) of the bilateral treaty between Austria and Israel).

Some treaties, e.g. the Lugano Convention, expressly govern the documentation that a party seeking enforcement has to furnish. The Lugano Convention requires a judgment to be provided in an original or an authentic copy. Further, the party seeking enforcement has to produce a certificate in accordance with the standard form in Annex V to the Convention.

With respect to the recognition and enforcement of arbitral awards, Article III of the New York Convention provides that the procedural rules of the enforcing state shall apply. While Article IV(1) of the Convention requires the creditor to furnish both an authenticated original award (or a certified copy thereof) and the original arbitration agreement (or a certified copy thereof), Section 614(2) ACCP does not require the creditor to furnish the arbitration agreement unless the enforcement court specifically requests it. In accordance with Article VII(1) of the New York Convention, the Austrian provision, being more liberal, super-sedes the more restrictive one in the New York Convention.

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 special regime? When can such a challenge be made?

With respect to foreign insolvency proceedings, their effects may not be recognised if domestic insolvency proceedings have already been opened or if interim measures have already been ordered in Austria. Also, the recognition may be refused if this would contradict Austrian public policy.

Pursuant to Section 91a(2) and Section 97(2) ALNM, the recognition of decisions related to adoption and certain matri-monial matters related to the validity, persistence and end of marriage may be refused if this would be manifestly irrecon-cilable with Austrian public policy (and where adoptions are concerned, with the child’s well-being), if the parties have not been granted the right to be heard, if the decision irreconcilably contradicts an Austrian decision or a previous foreign decision which fulfils the preconditions for recognition in Austria; and where the authority that has given the decision would not have been competent to decide the matter if Austrian rules on inter-national jurisdiction had been applicable. With respect to adop-tions, in particular, Section 91a(3) ALNM further provides that recognition may be refused if a person’s approval rights under the applicable law have been breached.

matrimonial matters related to the validity, persistence, and end of marriage are satisfied where the foreign decision has entered into legal force in its state of origin. Also, the party requesting recog-nition must have a legal interest in the recognition. Foreign judi-cial decisions, foreign court settlements and foreign public deeds on parental custody may only be recognised and granted a leave for enforcement in Austria if they are enforceable in the jurisdic-tion of their origin and no ground for rejecting their enforcea-bility in Austria exists. Pursuant to Sections 131b(1) and 131e(2) ALNM, the preconditions for the recognition and enforcement of a measure for the protection of vulnerable adults and their prop-erty are governed by the Hague Convention of 2000.

Under the Lugano Convention, if an executory title is enforce-able in the state of its origin and none of the grounds for rejec-tion apply, it shall be declared enforceable also in the state where enforcement is sought. The New York Convention obliges the contracting states to recognise and enforce arbitral awards provided that none of the grounds enumerated in Article V of the convention apply.

Typically, Austria’s bilateral treaties on recognition and enforcement provide that executory titles shall be recognised and/or enforced where three conditions are fulfilled: (i) the executory title does not violate Austria’s public policy; (ii) the debtor has been granted the right to be heard; and (iii) there is no proceeding on the same subject matter pending before a court in the country where recognition and/or enforcement is sought.

CMR, CIM, CIV, and COTIF do not stipulate any substantive law on the recognition and enforcement of the relevant execu-tory titles. Therefore, they only supersede Section 403 AEA, while Sections 404 et seqq. AEA remain applicable.


The bilateral and multilateral conventions listed in the answer to question 1.1 typically distinguish between recognition and enforcement (see, e.g., Articles 32 et seqq. of the Lugano Convention). They do not convey in the terms “recognition” and “enforcement” meanings that differ from those under Austrian law as discussed in answer to question 2.5.


With respect to adoption and certain matrimonial matters related to the validity, persistence, and end of marriage, Sections 91b and 98 ALNM provide that a party requesting the recogni-tion of a foreign decision has to furnish: (i) the original decision or a copy issued by the same authority accompanied by a certi-fied translation thereof; (ii) proof that the decision has entered into legal force in its jurisdiction of origin; and (iii) where the decision was given in the absence of the opponent, evidence that the opponent either agreed to the proceedings to be conducted in his or her absence or that he or she was at least served the document by which the proceedings were commenced. An appeal against the recognition must be filed within one month unless the habitual residence of the opponent is abroad, in which case the time period is two months.

With respect to matters of parental responsibility, under Section 114 ALNM the request for recognition of a foreign decision


36 Austria


binding after the rendering of a conflicting domestic decision, the Austrian appellate court by reviewing such domestic deci-sion must, ex officio, acknowledge the res judicata effect it might have. Any infringement of res judicata would constitute a ground for nullity which must be observed at all stages of the proceed-ings. As emphasised by the Court, the nullification applies to both, the exclusivity (“Einmaligkeitswirkung”) and the binding effect (“Bindungswirkung”) of a preliminary foreign judgement.

In arriving at its decision, the Austrian Supreme Court ruled that the way in which foreign judgements are recognised is governed by the lex fori, i.e., Austrian law, whereas the objec-tive and subjective limits of its legal effect are governed by the law of the jurisdiction where the executory title was rendered. Likewise, the Supreme Court stated that the question whether the res judicata effect must be considered by Austrian courts ex officio or only upon a respective party plea pertains to the proce-dural modality of recognition and is therefore governed by the lex fori, i.e. Austrian law. Further, the Supreme Court clari-fied that the interdiction of novation in appellate proceedings applies only to new facts and new evidence and, therefore, does not preclude the appellate court from considering the res judicata effect of a new foreign decision.

In a decision issued in April 2019 (4 Ob 230/18d), the Austrian Supreme Court determined that the substantive effects of a foreign decision do not follow the procedural recognition of that decision, but are governed by the substantive law deter-mined by the conflict rules of the lex fori as applicable law.

With respect to recent legislation, amendments to the AEA, which entered into force on 1 January 2019, now grant access to data about pending enforcement proceedings. The database is available online and yields instantaneous results. Attorneys and public notaries may access information about the enforce-ment court, the case number and the amount of the debt subject to the enforcement proceedings. It also shows whether there have been attempts to seize the debtor’s moveable assets and whether the debtor has been ordered to prepare an inventory of their property within the last year. However, the database does not show proceedings which have taken less than a month to conclude since their respective leave for enforcement or in which the creditor has not taken an action to actively pursue enforcement within the last two years.

To gain access to this information, attorneys and public nota-ries must merely attest the existence of a receivable their clients have against a debtor and reasonable doubts as to that debtor’s solvency. Most importantly, the new provisions do not require exhibiting an executory title; they instead seek to assist poten-tial claimants in evaluating the creditworthiness of prospective respondents before commencing court or arbitral proceedings.


Initiating recognition and enforcement procedures may only result in payment if the debtor owns assets of sufficient value. However, publicly available information regarding this issue is scarce.

The Austrian land register does not permit a search by a specific person’s name but only by specific properties. Therefore, it would only provide useful information as to the registered immovable assets owned by a debtor if such assets have already been identified. Nonetheless, once a foreign exec-utory title has become enforceable in Austria, an attorney repre-senting the creditor is entitled to information as to whether the debtor owns such immovable assets and their identity.

The grounds for refusing recognition as laid down in Sections 113 and 131b(4) ALNM mirror the grounds under Section 91a(2) ALNM with the exception that the foreign decision may not be recognised due to an irreconcilable contradiction with an Austrian decision (or a recognisable foreign decision) that was given after the decision to be recognised. Section 113(2) ALNM further provides that recognition shall be refused if the person responsible for the parental custody did not have a chance to participate in the foreign proceedings.

The grounds for refusing recognition and/or enforcement of foreign executory titles laid down in bilateral and multilat-eral treaties may differ significantly. Typically, a foreign execu-tory title will not be recognised if it (manifestly) contradicts the public policy of the state where recognition and/or enforcement is sought (see, e.g., Article 34 no. 1 of the Lugano Convention, Article 22(a) of the Hague Convention of 2007). Another common ground for rejecting a request for recognition and/or enforcement is a conflicting domestic decision (see, e.g., Article 34(4) of the Lugano Convention, and Article 5 no. 3 of the bilat-eral treaty between Austria and Israel). An appeal against the decision recognising a foreign decision or declaring it enforce-able is to be raised within one month (see, e.g., Article 43 no. 5 of the Lugano Convention) or 30 days (see, e.g., Article 23(6) of the Hague Convention of 2007).

4 Enforcement


With respect to immovable property, there are three types of enforcement measures, namely: compulsory mortgage; compul-sory administration with the goal to generate revenue to satisfy the claim; and compulsory sale of the immovable asset. The creditor may apply for each of these measures or for a combi-nation of them.

As far as enforcement against movable property is concerned, Austrian law distinguishes between attachment of receivables, attachment of tangible and moveable objects, attachment of claims for delivery against third-party debtors and attachment of other property rights (such as trademarks, patents, copyrights, licences, and shares).

The creditor may request the attachment of receivables owed to the debtor by third parties. Austrian law does not allow the attachment of certain specific receivables such as nursing allowance, rent aid, family allowance, and scholarships. Other receivables may only be attached to a certain extent or only under specific conditions in order to guarantee that the debtor’s income stays above the subsistence minimum.

Finally, the enforcement court may compel the debtor to perform or refrain from specific actions.

5 Other Matters


On 11 June 2018, the Austrian Supreme Court handed down a decision (4 Ob 88/18x) confirming that the res judicata effect of a foreign judgment applies at all stages of proceedings conducted in Austria. In particular, the decision expressly clarifies that the res judicata effect also affects pending appellate proceedings. Thus, even where a foreign executory title becomes final and


37Konrad Partners


The website of Austria’s Patent Office offers freely available information as to national and European patents, trademarks, designs, and protections.

Austria’s commercial register lists each business entity’s shareholders and its management. The database is searchable by company name.

It is also recommended to inquire whether there are pending enforcement proceedings against a debtor or a prospective respondent. Creditors and prospective claimants may make use of the recent amendments to the AEA as discussed above in the answer to question 5.1. In addition, creditors may request infor-mation from service providers such as “Kreditschutzverband 1870”, “Creditreform” and “Compass Gruppe”. They provide data about a person’s or a company’s creditworthiness and annual accounts. Where possible, they also provide information on shares in (other) companies or even bank accounts.


38

Dr. Christian W. Konrad is the founding partner of Konrad Partners. He is an Austrian Rechtsanwalt, a solicitor of England and Wales, and admitted as Euroadvokat in the Czech and Slovak Republics. He is an advocate in the fields of international arbitration, international litigation and public international law. He has extensive experience with arbitral practice, procedure and advocacy both in civil and common law systems. His practice covers inter-state, international and commer-cial disputes. He has represented international organisations and businesses in a broad range of cases involving, inter alia, long-term energy contracts, concession agreements, and entitlement to natural resources, immunities from jurisdiction, infrastructure projects, mergers and acquisitions. He also advises clients on the protection of their investment and enforcement of arbitration awards and state court judgments. He frequently acts as arbitrator and is a member of panels of various arbitration institutions worldwide. He serves as Vice-President of the Kosovo Permanent Tribunal of Arbitration.

Konrad PartnersRotenturmstrasse 13 1010 ViennaAustria

Tel: +43 1 512 95 00Email: [email protected] URL: www.konrad-partners.com

Konrad Partners is an international law firm delivering premier international arbitration services. The firm has offices in Vienna, Prague, Bratislava, Skopje, and London. The lawyers of Konrad Partners serve both as advo-cates and arbitrators in ad hoc and institutional proceedings, are qualified in multiple jurisdictions and have extensive expertise in handling high-profile arbitration cases before a wide range of international bodies.The firm’s collective experience in public and private sectors help clients respond to their nuanced and complex commercial needs as well as short- and long-term goals. The team integrates comprehensive legal expertise and technical industry knowledge to successfully handle disputes across a range of sectors, including: construction and engineering; energy and natural resources; licensing; infrastructure; bilateral investment treaties; post-M&A; pharmaceuticals; and insurance and reinsurance. The lawyers of Konrad Partners regularly advise clients throughout the life-cycle of a dispute, from negotiations through to arbitration and litigation, including enforcement of arbitral awards and court judgments.

www.konrad-partners.com


Austria

Philipp A. Peters is an Austrian Rechtsanwalt and partner at Konrad Partners. He acts both as counsel and arbitrator in international ad hoc and institutional arbitration proceedings. He regularly represents clients in disputes involving international delivery and supply contracts, complex engineering and construction projects and joint ventures, in particular in the area of industrial engineering. Furthermore, he advises clients in relation to the preparation and drafting of international project and delivery contracts, on the growing impact of data protection and data privacy laws, and on the legal structuring of commercial projects. He regularly lectures about his fields of expertise, in particular on issues of international arbitration, international contract law and international sales law. He is a member of the Board of ArbAut (Austrian Arbitration Association).

Konrad PartnersRotenturmstrasse 13 1010 Vienna Austria

Tel: +43 1 512 95 00Email: [email protected] URL: www.konrad-partners.com



Chapter 7 39

Belarus

Sorainen

Valeria Dubeshka

Alexey Anischenko

Belarus

Katsiaryna Hashko

Convention on legal assistance and legal relations in civil, family and crim-inal matters 1993 (Minsk treaty).

Georgia, Turkmenistan, Uzbekistan.

Section 3.

Convention on legal assistance and legal relations in civil, family and crim-inal matters 2002 (Chisinau treaty).

Armenia, Azerbaijan, Kazakhstan, Kyrgyz Republic, Tajikistan.

Section 3.

Bilateral treaties:Bilateral treaties (including treaties adhered to by way of succession after the USSR) on recip-rocal judicial assis-tance and support in civil, family, labour and crim-inal matters (the scope of regula-tion depends on the treaty).

Bulgaria, China, Cuba, Cyprus, Czech Republic, Egypt, Hungary, Iran, Italy, Latvia, Lithuania, Mongolia, Pakistan, Poland, Russia, Serbia, Slovakia, Syria, Turkey, Vietnam.

Section 3.

Treaty with Russia on enforcement of commercial (economic, arbi-trazh) state court acts 2001 (Moscow treaty).

Russia. Section 3.

Please note that this Chapter mainly covers recognition and enforcement of the foreign judgments on economic disputes and disputes arising out of civil relations.

1 Country Finder





General domestic regulation:Economic Procedural Code (EPC).

All jurisdictions (to the extent that otherwise is not provided by the relevant interna-tional treaty).

Section 2.

Civil Procedural Code (CPC).

All jurisdictions (to the extent that otherwise is not provided by the relevant interna-tional treaty).

Section 2.

Multilateral treaties:Agreement on the order of reciprocal enforcement of the arbitral awards, civil and economic judg-ments on the terri-tories of the CIS Member States 1998 (CIS treaty).

Azerbaijan, Kazakhstan, Kyrgyz Republic, Tajikistan.

Section 3.

Agreement on settlement of economic disputes 1992 (Kiev treaty).

Armenia, Azerbaijan, Kazakhstan, Kyrgyz Republic, Russia, Tajikistan, Turkmenistan, Uzbekistan, Ukraine.

Section 3.


40 Belarus


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 requirements, they have precedence over domestic legal acts.


The required connection is the place of residence (business). However, if the debtor does not have it on the territory of the Republic of Belarus or the place is unknown, but still possess recoverable assets – then the place where such assets are located may be claimed as a sufficient connection to justify jurisdiction of the relevant Belarusian court.


In accordance with the EPC, the court deciding on the issue of recognition and enforcement of a foreign judgment issues a court ruling and this ruling serves as a ground for enforcement and issuing of an enforcement order.

The same applies to the proceedings under the CPC with one exception that foreign judgments that do not demand enforce-ment are recognised with no further proceedings.


In order to recognise and enforce a foreign judgment a party must file an application to the court and attach the required documents (e.g. evidence that the debtor was duly notified about the foreign court proceedings, that the copy of application was sent to the debtor, etc.). The court notifies parties on the time 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 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 proceedings under the CPC) or supervisory instance. Enforcement is carried out in accordance with the execution documents. The term for free-will execution of an executive document by a debtor comprises seven days and after that an enforcement officer takes enforcement measures.

Judgments that do not demand enforcement are recog-nised automatically; namely, no further proceedings take place. Within one month from the date an interested party became aware of the judgment to be recognised it is entitled to submit to the court its objections. After the court considers the objections it issues the corresponding ruling. The ruling on recognition of such a judgment can be appealed against in the Supreme Court.


The foreign judgment may not be reviewed by a Belarusian court on its merits. The court only examines whether all the mandatory requirements are met to recognise and enforce a foreign judgment. The parties are free to raise arguments for and against recognition and enforcement, but, if parties are silent or favour recognition and enforcement, a Belarusian court is still obliged to verify compliance with the formal requirements and public policy in the first place.

2 General Regime


Under Belarusian law, the recognition and enforcement of foreign judgments is generally governed by Chapter 28 of the Economic Procedural Code (EPC) and Annex 4 of the Civil Procedural Code (CPC).

The EPC applies to economic disputes related to entrepre-neurial activity and other economic activity. Reciprocity may serve as a legal basis for recognition and enforcement of a foreign judgment even if Belarus does not have a corresponding treaty with a foreign state.

The CPC covers recognition and enforcement of all other foreign judgments, including those arising out of civil, labour, housing and land relations, relations on the use of natural resources and the environment, if at least one of the parties to the dispute is a private person. Unlike the EPC, the CPC does not explicitly provide for a possibility to recognise and enforce foreign judgments on the basis of the reciprocity principle, but also does not explicitly exclude such a possibility.

The provisions of international law have precedence over domestic legal acts; namely, they should apply if domestic legal acts contradict them.

Precedents are not considered to be official sources of law; 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 into the one Supreme Court), which elaborate on the application of certain legal provisions, are binding on the lower-instance courts. One of such relevant resolutions is the Resolution of the Plenum of the Supreme Court No. 18 of 23 December 2014 “On application by courts of legislation on recognition and enforcement of foreign court judge-ments and arbitration awards”, which succinctly summarises relevant legal sources, rules and procedures applicable to the recognition of foreign judgments.


Both codes incorporate a rather general definition of the foreign judgment.

The EPC defines it as a judgment issued in a dispute and in other matters related to entrepreneurial and other economic activity.

The CPC defines a foreign judgment as a judgment in civil cases against citizens, a sentence in criminal matters on compen-sation for the damage caused by a crime, as well as acts of other foreign state’s bodies if the international treaty of the Republic of Belarus provides so.


There are no specific requirements with regards to the substance, the courts shall not review foreign judgments on the substance. Belarusian courts recognise and enforce only final foreign judg-ments. Interlocutory judgments or rulings granting interim measures will not be recognised and enforced.

The foreign judgment shall be in writing and be filed in the court in a duly executed copy (legalised or apostilled subject to


41Sorainen



The review of a foreign judgment on the merits is not permis-sible; however, if the rule in the local law is considered to be a public policy rule, then the court will refuse to recognise and enforce a conflicting foreign judgment. Precedents are not considered to be official sources of law, therefore a prior judg-ment between the different parties is binding only upon them.


The review of a foreign judgment on the merits is not permis-sible, therefore a foreign judgment that purports to apply Belarusian law shall be recognised and enforced unless there is a violation of public policy, or other grounds indicated in ques-tion 2.7 above are triggered.


No, Belarus is a unitary state and there is no difference in the rules and procedures of recognition and enforcement between various regions.


The law establishes a three-year limitation period for enforce-ment of foreign judgments. The limitation period commences running on the day following the date when a foreign judg-ment has entered into legal force, unless otherwise provided by an applicable international treaty. If the limitation period is missed, it can be restored by the court if it finds the reasons for an omission of the limitation period excusable. However, no criteria are established for that judgment, and it is up to the court’s discretion to decide if a reason can be viewed as excus-able on a case-by-case basis.



Generally, regimes are silent on the form and substance of the judgment, but rather contain grounds upon which recognition and enforcement of judgments can be refused. These grounds are similar to those described in question 2.7.

The grounds for refusal to recognise and enforce a foreign judgment can be found in article 248 EPC and article 5 Annex 4 CPC, and they are mostly identical (slight differences in the scope are outlined below):■ According to the law of the country where the judgment

was issued it did not come into force.■ The dispute falls under the exclusive competence of

Belarusian courts (courts or other bodies under article 5 Annex 4 CPC).

■ There is a court judgment which has entered into legal force between the same parties, on the same subject matter and grounds.

■ There is a pending case in a Belarusian court between the same parties, on the same subject matter and grounds, which was initiated before the proceedings in the foreign court.

■ The limitation period for the enforcement has elapsed.■ Enforcement contradicts public policy of the Republic of

Belarus (under article 248 EPC) / enforcement contradicts sovereignty of the Republic of Belarus or basic principles of Belarusian law, or endangers security of the Republic of Belarus (under article 5 Annex 4 CPC).

■ The party against whom the judgment was issued did not have an opportunity to participate in the proceedings since it was not given proper timely notice about the proceed-ings (under article 248 EPC) / the party against whom the judgment was issued was not given proper notice about the time and place of the court proceedings or for any other reason was unable to provide its comments to the court (under article 5 Annex 4 CPC).

The provisions of international law have precedence over domestic legal acts; namely, they should apply if domestic legal 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.


For example, for the recognition of foreign judgments on bankruptcy article 4 of the Law on Economic Insolvency (Bankruptcy) is applied, which provides that foreign judgments on bankruptcy are recognised and enforced based on the rele-vant treaty or reciprocity principle.


The Belarusian court shall refuse recognition and enforcement of a foreign judgment if: (a) there is a judgment issued by a Belarusian court on a dispute on the same subject and grounds 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 commencement of the proceedings in the foreign state where the foreign judgment was issued.

However, if there is a final and conclusive judgment involving the same parties in the other country (country where a foreign judgment was issued or in a third country), it will be not consid-ered by a Belarusian court as a ground to deny recognition and enforcement in Belarus.


42 Belarus


4 Enforcement


An enforcement officer takes enforcement measures, which do not differ from the measures available for the enforcement of local judgments, for example: execution upon property; with-drawal of property and its transfer to the creditor; realisation of arrested property; seize of monetary funds; and suspension of bank account transactions, etc.

5 Other Matters


The main long-awaited development is the unified procedural code (merging the EPC and CPC), which is supposed to pass through the Parliament in 2020.

The Ministry of Justice was instructed to establish by 1 January 2021 an enforcement proceedings database that would improve transparency, make publicly available informa-tion on the existing enforcement proceedings and provide cred-itors with better control over the performance of the execution documents.


Since foreign judgments are not reviewed on the merits, the courts strictly follow the formal criteria established for the 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.

The most common formal ground of that kind is incorrect service of process (via e-mail, fax or post) or insufficient time 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 properly certified form (e.g. notary certification, apostille, trans-lation, etc.).


No, the treaties introduced in question 1.1 do not specify the difference. They are either silent or they generally directly refer to the legislation of the state where the recognition and enforcement is sought. Therefore, the rules set out in question 2.5 are applied.


Generally, treaties are silent on the procedure for recognition or enforcement of a foreign judgment or they directly refer to the legis-lation of the state where recognition and enforcement is sought. Therefore, the rules set out in question 2.6 above are applied.

The exceptions relate, for example, to the Moscow treaty. Judicial acts of the Russian competent courts are enforced in Belarus directly, meaning that they do not need a special recog-nition procedure. They are enforced in the manner as if judicial acts of Belarusian courts based on executive documents of the courts that issued the judgment.

The CIS treaty also states that the competent court’s judg-ment of one contracting party that has entered into legal force shall be executed on the territory of the other contracting party in an indisputable manner.

According to the Chisinau treaty, Minsk treaty and some of the bilateral treaties, court judgments which do not require enforcement are recognised if:a) the court of the requesting party have not previously issued

a judgment in this matter that have entered into legal force; or

b) the case does not fall within the exclusive competence of the court of the country where recognition is sought.


Please see question 3.1 thereto. If one party applies for recogni-tion and enforcement (which should be done within the limita-tion period indicated in question 2.13 above), the other party has the right to advocate its grounds for challenge within the proce-dural timelines.


43


Sorainen

Alexey Anischenko is a partner and head of the Dispute Resolution team at Sorainen Belarus. Alexey’s practice comprises client representa-tion 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, VIAC, IAC at the BelCCI and UNCITRAL rules and litigation in the 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 both 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.

Sorainenul Internatsionalnaya 36-1Minsk, 220030Belarus

Tel: +375 17 306 2102Email: [email protected]: www.sorainen.com

Sorainen is a fully integrated regional business law firm, advising on all busi-ness law and tax issues involving the Baltic States and Belarus.With uniquely integrated offices in Estonia, Latvia, Lithuania and Belarus, we operate as a single connected legal ecosystem. Our regional teams 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 interna-tional – 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.Our dispute resolution team is recognised internationally with partners from all four of our countries appearing on The Legal 500 list of leading individuals and ranked in Band 1 for dispute resolution by Chambers Europe, while our international arbitration practice is included in the prestigious GAR 100 list.

www.sorainen.com

Valeria Dubeshka is an associate at 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 international arbitration institutions: ICC (Paris); SCC (Stockholm); 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.



Katsiaryna Hashko is a member 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 sophisti-cated CISG-related cases, considered under the auspices of ICC, VIAC, CAM and other leading European arbitration centres.




Chapter 844

Belgium

Simont Braun Fanny Laune

Rafaël Jafferali

Belgium



According to Article 22 §3, 1° CPIL, a court decision means a decision taken by a State authority exercising judicial power. This means that the decision needs to have been issued by an authority which has power in the country of origin to render binding decisions. This can be a judicial authority but may also be an administrative authority in some cases. However, arbitral decisions are not judgments in the sense of Article 22 CPIL and are governed by their own regulations.


A foreign judgment must in principle be final, in the sense that no ordinary recourse against it remains possible (Article 25, §1, 4° CPIL). It must also be enforceable in the country of origin (Article 24, §1, 3° CPIL), although judgments against which an ordinary appeal has been lodged or which might still be subject to an ordinary appeal may still be provisionally enforced (in the event, made conditional on the provision of a security) (Article 23, §4 CPIL). Finally, the (remaining) grounds of refusal listed in Article 25, §1 CPIL and discussed below in question 2.7 must also be borne in mind.


The Belgian legal framework does not require any connection to Belgium in order for courts to accept jurisdiction for recogni-tion and enforcement of a foreign judgment.


Yes, there is a difference between recognition and enforce-ment. According to Article 22, §3, 2° CPIL, recognition confers binding force to a foreign judgment. Enforceability, on the other hand, is the forced execution of a decision.

To be enforceable, judgments which are enforceable in the country of origin must be declared enforceable in Belgium (i.e., must receive an exequatur). The procedure hereto is established in Article 23 CPIL.

1 Country Finder





Belgian Code of Private International Law of 16 July 2004 (“CPIL”)

All foreign jurisdictions

Section 2

2 General Regime


The legal framework in Belgium regarding the recognition and enforcement of foreign judgments is governed by the Law of 16 July 2004 establishing the Code of Private International Law (hereafter referred to as “CPIL”), which was published on 27 July 2004 and entered into force on 1 October 2004.

Subject to the application of international treaties, the law of the European Union or provisions in special laws, the CPIL regulates the jurisdiction of the Belgian courts for international cases. This includes the designation of the applicable law, as well as the conditions for the recognition and enforcement in Belgium of foreign judicial decisions and authentic instruments (Article 2 CPIL).

The specific rules regarding the recognition and enforcement of foreign judgments can be found in Chapter 1 (“General provi-sions”), section 6 of the CPIL. This section, which contains Articles 22 to 31, is entitled “effect of foreign judicial decisions and authentic instruments”.

The CPIL is applicable to all civil and commercial matters. As regards its applicability in time, Article 126, §2 CPIL states that the provisions relating to the recognition and enforce-ment of foreign judgments apply to judgments rendered after the entry into force of the CPIL (1 October 2004). However, a judgment or instrument issued before the entry into force of the CPIL may nevertheless have effect in Belgium if it meets the conditions laid down in the CPIL. For such judgments, recogni-tion can in other words be based on the most favourable regime.


45Simont Braun


The application for a declaration of enforcement must be brought and heard in accordance with the procedure referred to in Articles 1025 to 1034 of the Belgian Code of Civil Procedure (“CCP”), i.e., by way of unilateral (ex parte) petition. To this end, the applicant must first choose an address within the jurisdiction of the court (Article 23, §2 CPIL). The judge will subsequently examine the petition, and may, for this purpose, summon the applicant and the intervening parties to be heard in chambers. In that case, the summons shall be sent by the registrar to the parties by court letter (Article 1028 CCP). In this type of proce-dure, the judge is required to give his or her verdict at short notice (Article 23, §3 CPIL).

The foreign judgment against which an ordinary appeal has been lodged, or which might still be subject to an ordinary appeal, may be provisionally enforced. The court may make enforcement conditional on the provision of a guarantee (Article 23, §4 CPIL). A lawyer’s signature is required for the petition to be admissible (Article 1026, 5° CCP).

Conditions common for recognition and enforcementAccording to Article 24, §1 CPIL, the party seeking recogni-tion of a foreign judgment, or seeking its declaration of enforce-ability, must produce the following documents:■ an issue of the judgment that satisfies the conditions neces-

sary to establish its authenticity under the law of the State in which it was rendered;

■ in the case of a judgment rendered in absentia, the orig-inal or a certified copy of the document establishing that, under the laws of the State in which the judgment was rendered, the party which did not appear was served with the document which instituted the proceedings, or with an equivalent document; and

■ any document that makes it possible to establish that the judgment is enforceable and has been served under the laws of the State in which it was given.

If the documents are not produced, the court may specify a time limit for their production, accept equivalent documents or, if it considers that it in fact has sufficient information, waive the requirement altogether (Article 24, §2 CPIL).

The decision on enforceability can be appealed. Article 1031 CCP states that such an appeal, by either the applicant or by any intervening party, must be brought within one month of its notification, by an application complying with the provisions of Article 1026 CCP, and lodged at the Registry of the Appeals Court.

A third party, too, may file an opposition against a decision adversely affecting its rights (Article 1033 CCP). This opposi-tion must be lodged within one month after the decision is noti-fied to the third party (Article 1034 CCP). Such third-party proceedings must be brought, with summons to all parties, before the court that delivered the contested decision (Article 1125 CCP). If the decision on the opposition filed by the third party is one rendered in first instance, an appeal can be lodged; this is not possible if the contested decision itself was given on appeal (Article 1131 CCP). In that case, only a more limited appeal is possible before the Court of Cassation.

The decision on enforceability is in principle provisionally enforceable, notwithstanding appeal, unless stated otherwise (Article 1029 CCP). By way of derogation from Article 1029 CCP, however, only measures of a conservatory nature can be ordered against the property of the party against whom enforce-ment is sought, during the period within which a recourse may still be lodged against decisions authorising enforcement, and this until such recourse has been decided. The decision author-ising enforcement entails leave to take such measures (Article 23, §5 CPIL).


Prerequisite: LegalisationArticle 30 CPIL states that a foreign judgment must be legalised in order to be produced in Belgium. This legalisation confirms the authenticity of the signature, the capacity in which the person who signed the document was acting and, where neces-sary, the identity of the seal or the stamp. The legalisation does not, however, guarantee the authenticity of the document. The legalisation of a document is a necessity but it is, in and of itself, an insufficient condition for a judgment to be recognised and enforced.

After legalisation in the country of origin, the foreign judg-ment must be legalised in Belgium.

Article 30, §2 foresees a cascade system to determine who is responsible for legalisation. At the top of the list we find, first, a Belgian diplomatic or consular official accredited in the State where the decision was taken; second, and failing the former, a diplomatic or consular official of the foreign State representing Belgium’s interests in that State; and, finally, if the two former options were not possible, the Minister of Foreign Affairs.

Finally, it should be noted that several international instru-ments, e.g., within the European Union, have abolished or simplified the requirement of legalisation through the use of the so-called “apostille”.

RecognitionA second step, following legalisation of the foreign judgment, is that of recognition. According to Article 22 CPIL, a foreign judgment is recognised in Belgium, in whole or in part, without the procedure laid down in Article 23 having to be followed. This “de plano” recognition means that a foreign judgment can be presented to Belgian (administrative) authorities without any adherence to prior procedures. The grounds for refusal of recognition and enforcement listed in Article 25 CPIL (see ques-tion 2.7 below) must of course be borne in mind.

In addition, and pursuant to Article 22, §2 CPIL, any person may take steps to have a foreign judgment explicitly recog-nised, in whole or in part, by a Belgian court, and this in accord-ance with the procedure provided for in Article 23 CPIL. In cases concerning the status of physical persons, the Public Prosecutor’s Office can also initiate a procedure. If recognition is invoked on an incidental basis before a Belgian court, i.e., in the course of an ongoing procedure, that court shall have juris-diction to recognise the foreign judgment (Article 22, §1 CPIL).

EnforcementAlternatively, after legalisation, enforcement can be considered. Following Article 22 CPIL, a foreign judgment that is enforce-able in the State in which it was delivered shall be declared enforceable in Belgium, in whole or in part, in accordance with the procedure provided for in Article 23 CPIL. This may be requested by any interested person and, in cases concerning the status of persons, also by the public prosecutor.

In most cases, it is the court of first instance that is competent to hear cases regarding a declaration of enforceability (Article 23, §1 CPIL). In order to determine territorial jurisdiction, the CPIL imposes a cascade system. The territorially competent courts are, in the following order: (1) that of the defendant’s domicile or habitual residence; (2) in the absence of domicile or residence in Belgium, the court of the place of enforcement (Article 23, §2 CPIL); (3) when the first two options are not possible, the court of the place where the applicant is domiciled or habitually resident; and (4) if the applicant is not domiciled or resident in Belgium, the court for the district of Brussels (Article 23, §2 CPIL).


46 Belgium


from being conducted in parallel with one another. However, for this ground to apply, it is required that the Belgian procedure was initiated between the same parties, with the same object and cause of action, and is still pending.7. The Belgian courts had exclusive jurisdiction (Article

25, §1, 7°)A seventh ground for refusal is when Belgian courts do in fact have exclusive jurisdiction. The question in such cases of whether the CPIL imposes exclusive jurisdiction is disputed among legal scholars.8. When the jurisdiction of the foreign court was based

solely on the presence of the defendant or of property not directly connected with the dispute in the State to which that court belongs (Article 25, §1, 8°)

An eighth ground for refusal can be found in the perceived excessive international jurisdiction of the foreign court. This can be deemed the case, for example, when jurisdiction was based on the sole presence of the defendant or of certain goods which further have no bearing upon the subject matter of the dispute. Such mere “presence” can include a vacation in a particular country, or the fact that one was merely passing through a certain country.9. Finally, a number of specific refusal grounds (Article

25, §1, 9°)Additional refusal grounds apply in the case of specific subject matters, i.e., name, repudiation, adoption, intellectual property, legal entities and insolvency (see also question 2.8 below).


Several specific subject matters are dealt with separately by the CPIL:■ name (Chapter II, section 2, Article 39);■ repudiation (Chapter III, section 5, Article 57);■ adoption (Chapter V, section 2, Article 72);■ intellectual property (Chapter VIII, section 3, Article 95);■ legal entities (Chapter X, Article 115); and■ insolvency (Chapter XI, Article 121).


In such cases, the recognition or enforcement of the judgment can be refused. This will, more specifically, be the case when Article 25, §1, 5° or 6° CPIL applies (see also question 2.7 above).


Incompatibility with a local law per se does not constitute a ground for refusal of recognition or enforcement. However, as stated above, manifest incompatibility with international private law public order does constitute a ground for refusal (Article 25, §1, 1° CPIL; see question 2.7 above).

The incompatibility between a foreign judgment and a Belgian decision (or, for that matter, with a foreign judgment that can be recognised in Belgium) also constitutes a possible ground for a


Article 25, §1, 1°–8° CPIL lists, in a limitative way, eight grounds for the refusal of recognition and enforcement of a foreign judg-ment. Article 25, §1, 9° refers to a number of specific subject matters which are subject to additional rules (see also question 2.8 below).1. A manifest incompatibility with international private

law public order (Article 25, §1, 1°)The first ground for refusal is when the judgment is incompatible with the principles which are essential for the moral, political and economic order of Belgium. The Belgian judge will not verify the decision as such, but will, instead, examine the effects that a recog-nition or enforcement would have on the Belgian legal order. The judge will look especially at the degree to which a case is connected to the Belgian legal order, and at the severity of the consequences caused by the recognition or enforcement of the judgment.2. A violation of the rights of defence (Article 25, §1, 2°)A second refusal ground can be found in a violation of the rights of defence. In practice, this does not mean that all the rules of Belgian procedure have to be followed, but it does mean that the fundamental principles governing Belgian procedure must have been respected. These may include the impartiality of the judge, and the possibility for the defendant to organise his defence in a timely and effective manner, as well as other guarantees found in the European Convention on Human Rights.3. The decision was obtained solely in order to evade the

application of the law (Article 25, §1, 3°)The third refusal ground can be found in the situation where a decision appears to have been obtained solely to evade the appli-cation of the law designated by the CPIL, and this in a matter where the parties are not free to dispose of their rights. The check required under this refusal ground does not pertain to a general investigation of the law applied abroad. Only cases where parties were exclusively guided by fraudulent intention will be sanctioned.4. The foreign judgment is still susceptible to ordinary

recourse (Article 25, §1, 4°)A fourth ground for refusal can be found in a situation where a foreign judgment is still susceptible to ordinary recourse in the country of origin. In that case the judgment, as a matter of prin-ciple, cannot be recognised or enforced in Belgium. An excep-tion is made, however, for judgments which are provisionally enforceable in the country of origin (Article 23, §4).5. Incompatibility with a Belgian decision or with a

foreign judgment that can be recognised in Belgium (Article 25, §1, 5°)

A fifth ground for refusal can be found in the situation where a foreign judgment is incompatible either with a Belgian decision, or with a foreign decision that can be recognised in Belgium; deci-sions being here understood as comprising arbitral decisions. For this refusal ground to be applicable, it is necessary that the Belgian procedure has been concluded with a decision against which no further appeal is possible. It is irrelevant whether the Belgian decision comes chronologically after the foreign decision or not. Conversely, if a foreign decision is invoked at the time when the Belgian procedure of recognition/enforceability has not yet been concluded, this foreign judgment can be invoked. In other words, for this ground of refusal to be applicable, the foreign judgment that is invoked must predate the foreign judgment for which recognition/enforceability is requested.6. The foreign action was brought abroad following

the bringing in Belgium of an action which is still pending between the same parties and with the same subject matter (Article 25, §1, 6°)

The sixth ground for refusal aims at preventing two procedures


47Simont Braun



This is not applicable in Belgium. Please refer to question 3.1.



4 Enforcement


The full panoply of enforcement measures is available to the creditor once a judgment is recognised and declared enforceable. This includes the attachment of movable and immovable assets, third-party attachment, and garnishment of bank accounts and earnings.

5 Other Matters


A judgment of the Supreme Court of 12 September 2019 (C.19.0033.N) has confirmed that a foreign judgment does not, by itself, empower a creditor to make a conservatory attachment on the assets of its debtor, unless the conditions set by the CPIL for the recognition of this foreign judgment are fulfilled.


The CPIL foresees in a de plano recognition of foreign judg-ments. However, this is only a presumed recognition. While there is, strictly speaking, no necessity to initiate legal proceed-ings, each authority for which recognition is invoked still has an obligation to verify whether the conditions for recognition have been met. Of particular importance in this regard are the grounds for refusal set out in Article 25 CPIL. A petition to obtain recognition through the court system can therefore be held to offer more legal certainty.

refusal of recognition and enforcement (Article 25, §1, 5° CPIL; see question 2.7 above).


There is no special approach in this case, as judgments are not reviewed on their merits.


No, there are no differences. The CPIL constitutes federal legis-lation and is applicable to the whole of the Belgian territory, without exception.


The CPIL does not provide for a limitation period to recognise and enforce a foreign judgment.

Nevertheless, it must be noted that, as per Article 22, §1 CPIL, it is a precondition for any foreign judgment to be recog-nised or enforced in Belgium that it is enforceable in its country of origin. If a foreign judgment is therefore time-barred in its country of origin, it will no longer be possible to recognise or enforce it in Belgium.

Moreover, Article 2262bis, §1 of the Belgian Civil Code lays down a limit of 10 years for legal actions, including those pertaining to the enforcement of judgments. This limitation will most likely also apply to the enforcement of foreign judg-ments after its enforcement has been authorised by Belgian courts.



Belgium in its national legislation does not differentiate between countries when it comes to the recognition and enforcement of foreign judgments. However, several international treaties (e.g., the 1956 CMR Convention or the 2005 Hague Choice of Court Convention) as well as European instruments (the Brussels Ibis Regulation, the Insolvency Regulation) may take precedence over the CPIL.




48

Rafaël Jafferali specialises in dispute resolution (including arbitration and proceedings before the Belgian Supreme Court), contract law, tort law and private international law. He mainly acts in major judicial proceedings and arbitration cases and advises clients on complex questions in his various areas of practice. He is also Associate Professor and holder of the Chair of Law of Obligations at the Université Libre de Bruxelles (ULB). He is the author of numerous publications in the areas of contract law, tort law and private international law, including a PhD thesis on the theme of retrospectivity in contract law. He is a member of the editorial committee of Journal des Tribunaux, Revue de droit commercial, Revue générale de droit civil and Répertoire pratique de droit belge. He is a member of CEPANI40 and of the Belgian group of Association Henri Capitant.He received the Paul Foriers Prize (2001), the René Marcq Prize (2003), the Medal of the Université Libre de Bruxelles (2003), the Jean-Jacques Boels Prize (2008), the Joseph Helsen Prize (2014), the Lucien Campion Prize (2014) and the prize awarded by Revue critique de jurisprudence belge (2015).Rafaël Jafferali is recognised as a Future Leader in Litigation and Arbitration by Who’s Who Legal.

Simont BraunAvenue Louise 149/201050 BrusselsBelgium

Tel: +32 2 533 1762Email: [email protected] URL: simontbraun.eu

Since its founding in 2003, Simont Braun is one of Belgium’s leading inde-pendent business law firms. Our lawyers are engaged in transactional and advisory work as weIl as in litigation. Our firm focuses on the following key practice areas: ■ Business law, notably corporate and securities law, M&A, banking and

finance, security interests, restructurings and insolvency law. ■ IP/IT (covering all aspects of such specific areas, including new technol-

ogies and trade practices). ■ Public and administrative law.■ Real estate and construction law, environmental law, town and regional

planning. ■ Dispute resolution (national and international litigation and arbitration

before all Belgian courts including the Supreme Court, the Council of State and the Constitutional Court).

■ Tax law and labour law.■ Financial criminal law.Simont Braun is one of the only independent Belgian business law firms offering such a complete range of legal services. Thanks to our integrated structure, we are able to assist companies on nearly every aspect of their existence.Our approach to legal services is designed to promote excellence, effi-ciency, flexibility and independence.

simontbraun.eu

Belgium

Fanny Laune possesses broad experience in commercial litigation, in addition to an in-depth expertise in corporate/M&A.Fanny also gained over the years extensive experience in all types of insolvency proceedings.She assists Belgian and international clients before the Belgian courts in all commercial and corporate matters (notably shareholders’ disputes, commercial lease agreements, bankruptcy, judicial reorganisation proceedings, liquidation, etc.) and provides advice on these matters.She has been a teaching assistant in civil procedure at the Université Libre de Bruxelles (ULB) since 2009, and therefore has particularly in-depth knowledge and experience of the field, which is highly valued by clients.Fanny successfully completed the training to become a registered mediator in civil and commercial matters.She has authored several publications in civil procedural law and related issues. Recently, she co-authored the first two volumes (of three) of a compendium on general civil procedural law (X., Droit du procès civil, Volume 1 et 2 – sous la direction scientifique de Jacques Englebert et Xavier Taton, Limal, Anthémis, 2018–2019).She is a recipient of the Paul Foriers Prize (ULB – 2004) and the René Marcq Prize (ULB – 2008).

Simont BraunAvenue Louise 149/201050 BrusselsBelgium

Tel: +32 2 533 1762Email: [email protected]: simontbraun.eu




Chapter 9 49

Brazil

Machado Meyer Sendacz e Opice Advogados Ariana Júlia de Almeida Anfe

Eduardo Perazza de Medeiros

Brazil

Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labour and Administrative Matters (Legislative Decree No. 55, dated 19 April 1995, Decree No. 2,067, dated 12 November 1996, Legislative Decree No. 1,021, dated 24 November 2005, and Decree No. 6,891, dated 2 July 2009).

MERCOSUL: Argentina; Brazil; Paraguay; and Uruguay – and Bolivia and Chile.

Section 3.

Treaty Relating to Judicial Cooperation and the recogni-tion and execution of decisions on Civil Issues between the Government of the Federative Republic of Brazil and the Italian Republic (Decree No. 1,476, dated 2 May 1995).

Italy. Section 3.

Inter-American Convention on International Commercial Arbitration – Panama Convention (Decree No. 90, dated 6 June 1995, and Decree No. 1,902, dated 9 May 1996).

Signatory coun-tries to the Convention.

Section 3.

1 Country Finder





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 to 216-X.

Brazil. Section 2.

Convention of Judicial Cooperation on Civil Issues, between the Government of the Federative Republic of Brazil and the Kingdom of Spain, (Decree No. 166, dated 3 July 1991).

Spain. Section 3.

Agreement of Judicial Cooperation on Civil, Commercial, Labour and Administrative Issues between the Government of the Federative Republic of Brazil and the Oriental Republic of Uruguay, enacted in Brazil by Decree No. 1,850, dated 28 December 1992.

Uruguay. Section 3.


50 Brazil


UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 – New York Convention (Decree No. 4,311, dated 23 June 2002).


Section 3.

MERCOSUL Agreement on International Commercial Arbitration – Buenos Aires Convention (Decree No. 4,719, dated 4 June 2003).

MERCOSUL: Argentina; Brazil; Paraguay; and Uruguay.

Section 3.

Protocol of Cooperation and Jurisdictional Aid on Civil, Commercial, Labour and Administrative Issues between the Government of the Member States of the MERCOSUL and the Republic of Bolivia and the Republic of Chile (Decree No. 6,891, dated 2 July 2009).

MERCOSUL: Argentina; Brazil; Paraguay; and Uruguay – and Bolivia and Chile.

Section 3.

Treaty to Judicial Cooperation on Civil and Commercial Issues between the Federative Republic of Brazil and the Republic of China (Decree No. 8,430, dated 9 April 2015).

China. Section 3.

Convention on Obtaining Evidence Abroad in Civil or Commercial Matters (Decree No. 9,039, dated 27 April 2017).


Section 3.

2 General Regime


The recognition and enforcement of foreign judgments in Brazil is essentially ruled by the Introductory Law to the Brazilian Legal System – Decree Law No. 4,657/1942, and by the Rules of Procedure of the Superior Court of Justice – Articles 216-A to 216-X, in addition to Section 105, letter l, item i, and Article 109, letter X, of the Federal Constitution, and Sections 515, item VIII, and 960 to 965 of the Code of Civil Procedure.

Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards – Montevideo Convention (Decree No. 93, dated 20 June 1995, and Decree No. 2,411, dated 2 December 1997).


Section 3.

Agreement of Judicial Cooperation on Civil, Commercial, Labour and Administrative Issues between the Government of the Federative Republic of Brazil and the Government of the Argentine Republic (Decree No. 1,560, dated 18 July 1995).

Argentina. Section 3.

Brazilian Arbitration Law – Federal Law No. 9,307, dated 23 September 1996 (as amended by Federal Law No. 13,129, dated 26 May 2015).

Brazil. Section 2.

Protocol of Cooperation and Jurisdictional Aid on Civil, Commercial, Labour and Administrative Issues between the Countries of the MERCOSUL (Decree No. 2,067, dated 12 November 1996).

MERCOSUL: Argentina; Brazil; Paraguay; and Uruguay.

Section 3.

Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitration Awards (Decree No. 2,411, dated 2 December 1997).


Section 3.

Cooperation Agreement on Civil Issues between the Government of the Federative Republic of Brazil and the Government of the French Republic (Decree No. 3,598, dated 12 September 2000).

France. Section 3.


51Machado Meyer Sendacz e Opice Advogados


The recognition of a foreign judgment is a prerequisite to its enforcement in Brazil.


The Superior Court of Justice is the authority with jurisdiction to recognise a foreign judgment in Brazil. The procedure begins with the submissions of a formal request by the interested party, addressed to the President of the Superior Court of Justice, which should be presented along with the documents that demonstrate the compliance with the requirements indicated in question 2.3, especially the original or certified copy of the judgment to be recog-nised, as well as of the arbitral agreement, in case of arbitral awards.

These documents must be accompanied by a sworn transla-tion into Portuguese and have been previously authenticated by the competent Brazilian consular authority, or notarised and apostilled by the foreign authority if the HCCH Convention Abolishing the Requirement of Legalisation for Foreign Public Documents 1961 (Apostille Convention) is in force in the country where the documents were issued.

Should the request and documents submitted be considered sufficient by the President of the Superior Court, he will issue an order of service on the defendant, who is allowed to present a response to the request. Both plaintiff and defendant can 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 case. Should the defendant file a response challenging the request, the case will be deliberated by a special collegiate chamber.

The Public Prosecutor’s Office will be summoned to present an opinion on the request for recognition, before the final deci-sion by the Superior Court.

In very exceptional cases, the parties involved can present extraordinary appeals to the Federal Supreme Court.

If recognition is granted, the decision is made final and unap-pealable, and the interested party may trigger the enforcement procedure, which will be processed before a State Federal Court.


The recognition/enforcement of a judgment may be challenged on the grounds of non-fulfilment of either formal or substan-tive requirements. Accordingly, the defendant may argue that:■ the summons was not duly served to the defendant;■ the foreign judgment is not a final decision or it has been

issued without the necessary formalities to be enforceable in the jurisdiction where it was rendered;

■ the Court or tribunal that issued the foreign judgment had no jurisdiction to do so;

■ the interested party failed to observe the procedural requirements or to provide the necessary documents for the recognition proceeding; or

■ the foreign judgment violates Brazil’s national sovereignty, good morals and/or public policy.

With respect to arbitral awards, the recognition may also be challenged on the following grounds: ■ the parties to the arbitration agreement were under some

incapacity;■ the arbitration agreement was not valid under the law to

which the parties have subjected it, or failing any indica-tion thereon, under the law of the country where the award was made;


For the purposes of recognition and enforcement, a foreign ‘judgment’ is any final and non-appealable decision rendered by a Foreign Court or tribunal (Section 962, Code of Civil Procedure and Section 216-D, III, Rules of Procedure of the Superior Court of Justice). Sections 216-O to 216-X of the Rules of Procedure of the Superior Court of Justice allow the recog-nition and enforcement of foreign interlocutory decisions in Brazil.

Brazilian Courts may grant injunctions or commence the provisory enforcement of the foreign judgment (paragraph 3, Article 961, Code of Civil Procedure).


A foreign judgment shall be recognised and enforceable in Brazil provided that: (a) it was rendered by a Court or arbitral tribunal with jurisdiction over the matter (as determined by the rules of jurisdiction of the place of origin); (b) the parties have been duly summoned and took part in the lawsuit, or allowed judgment to go by default; (c) it is a final decision, having fulfilled the neces-sary formalities to be enforceable in the jurisdiction where it was rendered; and (d) the party presented a certified copy of the foreign judgment along with a Portuguese version of such judgment, trans-lated by an authorised translator. With respect to arbitral awards, it is also required that: (a) the parties to the arbitral proceeding have capacity to engage in arbitration; (b) the arbitration agreement is 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 dispute can be settled by arbitration under Brazilian Law.

Additionally, to be recognised and enforced in Brazil, the foreign judgment shall not violate national sovereignty, good morals, and public policy. The term public policy is not defined by any legal provision in Brazil, however, it is broadly interpreted as the set of values and fundamental political choices prevalent in a particular society, at a particular moment in history, as a rule, specified in the Constitution.


As a rule, Brazilian Law does not require any specific connec-tion to Brazil to accept jurisdiction for recognition and enforce-ment of a foreign judgment. Nonetheless, there are precedents of the Superior Court of Justice denying recognition, based on the general principal of effectiveness, due to the absence of any point of connection between Brazil and the matter under discus-sion [See: STJ, SEC 8,542, 2017].


Yes, these concepts have different meanings under Brazilian Law. Recognition is understood as the acceptance, by the Brazilian Court, of the legal rights and obligations made by the rendering Court in the foreign jurisdiction; enforcement is understood as the application of the local legal procedures to ensure that the judgment debtor will obey the foreign judgment.


52 Brazil



The same rules and procedure of recognition and enforcement of foreign judgments apply to all Brazilian territory.


Brazilian Law does not provide for a specific rule on the limita-tion period related to the procedures of recognition and enforce-ment of foreign judgments. From a conservative perspective, it can be argued that the limitation period to the recognition request is the same as the one applicable to the procedure in which the relevant judgment was rendered (referring to the statute of limitation determined by the foreign jurisdiction).



In general, the specific regimes set out in question 1.1 follow the same requirements imposed by the general rules provided by the Brazilian Code of Civil Procedure and by the Rules of Procedure of the Superior Court of Justice.

It is worth mentioning the following particularities:■ The New York Convention provides that arbitral awards, to

be enforced, must be preceded by a valid arbitration clause or agreement, which must have been made in writing.

■ The MERCOSUL Agreement on International Commercial Arbitration requires that arbitral awards shall contain: (a) the date and place where they were rendered; (b) the grounds that support their conclusions; (c) a decision that encom-passes all matters submitted by the parties; and (d) informa-tion on the arbitration’s expenses.


The specific regimes set out in question 1.1 do not expressly specify a difference between recognition and enforcement. However, for those with broader application (the Las Leñas Protocol, Panama Convention, Montevideo Convention and New York Convention), such differentiation is implicit.


In general, the specific regimes set out in question 1.1 provide that the recognition and enforcement of a Court decision or arbitral awards should be ruled by the law of the jurisdiction where such decision is to be recognised and enforced.

■ it was not given proper notice of the appointment of an arbitrator or the arbitral proceedings, or was otherwise unable to present his case;

■ the arbitral award was issued beyond the scope of the arbi-tration agreement and it was not possible to separate the exceeding portion from what was submitted to arbitration;

■ the commencement of the arbitration proceedings was not in accordance with the submission agreement or the arbi-tration clause; or

■ the arbitral award has not yet become binding on the parties or has been set aside or suspended by a Court in the country where the arbitral award was made.


Brazilian Law has no particular provisions to regulate the recog-nition and enforcement of foreign judgments relating to specific subject matters.


Brazilian Law does not recognise international lis pendens, i.e. a lawsuit brought before a Foreign Court does not prevent a Brazilian Court from processing and deciding on the same subject matter. The local proceeding would only be dismissed, on the grounds of lis pendens, if the foreign judgment had already been recognised by the Superior Court of Justice, and this recog-nition decision is final and no longer subject to any appeal (res judicata).


Upon deciding about the recognition and enforcement of a foreign judgment, Brazilian Courts will not analyse the merits of the judgment, but only the formal and substantive requirements (please refer to question 2.3). A foreign judgment may not there-fore be challenged on the grounds that the Foreign Court was manifestly wrong on the merits of the case or misapplied the relevant law. However, if the Foreign Court’s judgment violated Brazil’s national sovereignty or public policy, the Superior Court shall deny recognition.


Upon deciding about the recognition and enforcement of a foreign judgment, Brazilian Courts will not analyse the merits of the judgment, but only the formal and substantive require-ments (please refer to question 2.3). Therefore, the recognition of a foreign judgment is not open to challenge on the ground that it misapplies Brazilian Law.

It is worth noting, however, that Brazilian Law sets forth the exclusive jurisdiction of Brazilian Courts over certain subject matters.


53Machado Meyer Sendacz e Opice Advogados


4 Enforcement


Once a judgment is recognised, a judgment creditor has avail-able to it the same methods and options to enforce that judg-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 the Superior Court of Justice and is processed before a State Federal Court, according to internal jurisdiction rules. Once the writ of execution reaches the Federal Court, it follows the same enforcement proceedings applicable to the enforcement of a domestic judgment. The Federal Court will then be able to order the fulfilment of the award or other actions necessary to enforce the foreign judgment, such as:■ The seizure and freezing of bank accounts.■ The seizure of assets and their subsequent sale at auction.■ The seizure of credit rights that the debtor is entitled to.■ Any other measures that are legally deemed to be neces-

sary for the enforcement.

5 Other Matters


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


The party may have some difficulty in enforcing default judg-ments in Brazil, given that Brazilian Courts tend to be strict in analysing whether the defendant actually had the opportunity to appear in the original lawsuit.

Also, time may be a sensitive issue to be considered by a party interested in recognising and enforcing a judgment in Brazil. If the procedure becomes contentious, the final decision may be delayed.


■ Las Leñas Protocol provides that recognition/enforce-ment may be challenged on the grounds that, in the juris-diction where the decision is to be recognised/enforced: (a) a previous decision was rendered, involving the same parties, facts and object, being incompatible with the judg-ment to be recognised/enforced; or (b) there is a pending procedure involving the same parties, facts and object.

■ The Panama Convention provides that recognition/enforcement may be challenged on the grounds that: (a) the arbitral agreement is invalid and/or parties lacked capacity for signing it; (b) the defendant was not duly noti-fied of the proceedings, of the appointment of arbitrators or in any way was denied the opportunity to present its case; (c) the award decides on matters not comprised in the scope of the arbitral agreement; (d) the arbitral proceeding – and/or the constitution of the arbitral tribunal – was carried out in a way that is incompatible with the terms of the arbitral agreement; (e) the relevant decision is not binding or has been suspended or set aside in the juris-diction of origin; (f ) the subject matter of the dispute is not arbitrable under the law of the jurisdiction in which the decision is to be recognised/enforced; or (g) the recog-nition/enforcement of the relevant decision would violate the public order of the jurisdiction in which it is to be recognised/enforced.

■ The New York Convention provides that recognition/enforcement may be challenged on the grounds that: (a) the arbitral agreement is invalid and/or parties lacked capacity for signing it; (b) the defendant was not duly noti-fied of the proceedings, of the appointment of arbitrators or in any way was denied the opportunity to present its case; (c) the award decides on matters not comprised in the scope of the arbitral agreement; (d) the arbitral proceeding – and/or the constitution of the arbitral tribunal – was carried out in a way that is incompatible with the terms of the arbitral agreement; (e) the relevant decision is not binding or has been suspended or set aside in the juris-diction of origin; (f ) the subject matter of the dispute is not arbitrable under the law of the jurisdiction in which the decision is to be recognised/enforced; or (g) the recog-nition/enforcement of the relevant decision would violate the public order of the jurisdiction in which it is to be recognised/enforced.

■ The MERCOSUL Agreement on International Commercial Arbitration refers to the rules provided by other interna-tional conventions.


54

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 AdvogadosAv. Brigadeiro Faria Lima, 3144, 11º andarSão Paulo – SPCEP 01451-000Brazil

Tel: +55 11 3150 7691Email: [email protected]: www.machadomeyer.com.br

We have been building our history for 47 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 multi-national 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, develop-ment and retainment programme. We have a Citizenship Committee to plan actions in support of various social and cultural projects.

www.machadomeyer.com.br


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 manage-ment of recurrent cases.

Machado Meyer Sendacz e Opice AdvogadosAv. Brigadeiro Faria Lima, 3144, 11º andarSão Paulo – SPCEP 01451-000Brazil

Tel: +55 11 3150 7734Email: [email protected]: www.machadomeyer.com.br


Chapter 10 55

Canada

Blake, Cassels & Graydon LLP Josianne Rocca

Erin Hoult

Canada


The Reciprocal Enforcement of Judgments Act, CCSM, c J20 (Manitoba).

All Canadian provinces and territories with the exception of Québec.Australia; and the United States (Washington, Idaho).

Section 3.

The Enforcement of Foreign Judgments Act, SS 2005, c E-9.121 (Saskatchewan).

All foreign jurisdictions.

Section 3.

Reciprocal Enforcement of Judgments Act, RSPEI 1988, c R-6 (Prince Edward Island).

All Canadian provinces and territories with the exception of Québec.United States (Washington).

Section 2.

Reciprocal Enforcement of Judgments Act, RSNL 1990, c R-4 (Newfoundland & Labrador).

All Canadian provinces and territories with the exception of Québec.Australia; and the United Kingdom.

Section 2.

Canada-United Kingdom Civil and Commercial Judgments Convention Act, RSC 1985, c C-30 (imple-menting the Convention Between Canada and the United Kingdom of Great Britain and Northern Ireland Providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters) (Canada).

United Kingdom. Section 2.

1 Country Finder





Reciprocal Enforcement of Judgments (U.K.) Act, RSO 1990, c R.6 (Ontario).


Reciprocal Enforcement of Judgments Act, RSO 1990, c R.5 (Ontario).

All Canadian provinces and territories with the exception of Québec.

Section 2.

Court Order Enforcement Act, RSBC 1996, c 78 (British Columbia).

All Canadian provinces and territories with the exception of Québec.Australia; Austria; Germany; United Kingdom; and the United States (Alaska, California, Colorado, Idaho, Oregon, Washington).

Section 3.

Reciprocal Enforcement of Judgments Act, RSA 2000, c R-6 (Alberta).

All Canadian provinces and territories with the exception of Québec.Australia; and the United States (Idaho, Montana, Washington).

Section 3.


56 Canada


provinces excluding Québec, which operates under a civil law regime.


To be capable of recognition and enforcement, a foreign judg-ment must have been issued by a court of competent jurisdic-tion according to Canadian conflict of laws rules. Further, the foreign judgment must be final and conclusive in the original jurisdiction, and must be for a debt or definite sum of money or, if not a monetary judgment, must be sufficiently clear and specific and of a nature that the principle of comity requires the Canadian court to enforce it.


Historically, only foreign money judgments were enforceable in Canada. However, in 2006, the Supreme Court of Canada held that courts have jurisdiction to enforce foreign judgments providing non-monetary awards (Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52). Foreign judgments must be clear and specific. Specificity is linked to the ability to remedy non-performance with contempt of court proceedings. The territorial scope of injunctive relief must be specific and clear to be enforced.

While a foreign judgment must be conclusive and final before it can be enforced, a Canadian court may recognise and enforce interlocutory orders that meet the underlying objectives of the requirement of finality. If the foreign court retains the power to vary or otherwise modify or recall its own judgment, the judgment is not final and is thus not enforceable. In addition, a judgment that is not final and conclusive on the merits in the foreign juris-diction is not enforceable. Although the fact that a foreign appeal is pending is not determinative of finality, a Canadian court can grant a stay of the recognition action pending the appeal.


For a Canadian court to have jurisdiction over an action to recognise and enforce a foreign judgment, the foreign court must have had jurisdiction, either on the basis of a real and substantial connection to the defendant or with the subject matter of the dispute, or on another traditional basis for juris-diction, such as the presence or consent of the defendant. There is no need for a “real and substantial connection” between either the subject matter of the foreign dispute or the judgment debtor, and the province in which recognition and enforcement is sought (Chevron Corp. v. Yaiguaje, 2015 SCC 42).


Recognition of a foreign judgment differs from enforcement of a foreign judgment. Recognition is the process by which a Canadian court of competent jurisdiction determines whether a foreign judgment will be recognised or “affirmed” in its jurisdic-tion. Enforcement is the process by which a party may collect on a judgment through various methods (see question 4.1). A foreign judgment must be recognised before it can be enforced.

International Conventions Implementation Act, RSA 2000, C I-6 (Alberta).


The Canada-United Kingdom Judgments Enforcement Act, SS 1988-89, c C-0.1 (Saskatchewan).


The Canada-United Kingdom Judgments Enforcement Act, CCSM, c J21 (Manitoba).


Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, RSNB 2016, c 109 (New Brunswick).


Canada and United Kingdom Reciprocal Recognition and Enforcement of Judgments Act, RSNS 1989, c 52 (Nova Scotia).


Canada-United Kingdom Judgments Recognition Act, RSPEI 1988, c C-1 (Prince Edward Island).


Canada and the United Kingdom Reciprocal Recognition and Enforcement of Judgments Act, RSNL 1990, c C-3 (Newfoundland & Labrador).


The Enforcement of Judgments Conventions Act, CCSM, c E117 (Manitoba).

France. Section 2.

Civil Code of Québec, CQLR c CCQ-1991, Articles 3155–3163 (Québec).

All foreign jurisdictions.

Section 2.

2 General Regime


Absent any applicable special regime, a foreign judgment would be recognised and enforced under common law in all Canadian


57Blake, Cassels & Graydon LLP


be contrary to public policy, consideration must be given to the historical and factual context of the proceedings that led to the granting of the judgment.


Canadian courts will not enforce foreign judgments relating to public law, taxes, penal or quasi-criminal matters. The province of Québec, however, will recognise tax judgments from other jurisdictions where tax laws at issue are those of a state that also recognises and enforces the taxation laws of Québec.

In addition, recognition and enforcement of certain types of foreign judgments may be subject to particular legislative frame-works. For example, legislation governing interjurisdictional support orders provides a mechanism for obtaining, enforcing or varying a support order in a reciprocating jurisdiction.


A Canadian court will not recognise or enforce a foreign judgment unless it is final and conclusive. Where there is a conflicting local judgment between the parties or there are local proceedings pending between the parties such that the judg-ment is not final and conclusive, a foreign judgment will not be recognised or enforced in Canada (see question 2.3).

Where a foreign judgment that is sought to be recognised conflicts with a prior judgment involving the same parties, and each judgment was pronounced by a court of competent juris-diction and is final and conclusive, the general rule is that the first-in-time judgment must be given preference over the later-in-time judgment.


Based on the principles outlined above, Canadian courts will examine the foreign judgment in question to determine whether it complies with the requirements for recognition and enforce-ment. As such, a foreign judgment may be recognised and enforced by a Canadian court, provided the foreign judgment is final and conclusive, there are no issues with jurisdiction and there are no defences raised with respect to fraud, denial of natural justice or public policy (see questions 2.2, 2.3 and 2.7).


There is no specific guidance regarding the approach of Canadian courts to recognition and enforcement of a foreign judgment that purports to apply Canadian law. While it may be subject to greater scrutiny, the foreign judgment in question would generally be subject to the same requirements applied to all foreign judgments (see questions 2.2 and 2.3).

The difference between recognition and enforcement is illus-trated where a defendant faces an attempt by the plaintiff to re-litigate the same issues from a foreign action in a domestic forum and wishes to assert the defence of res judicata. In that case, the defendant would need the court in that domestic forum to recognise, but not enforce, the foreign judgment.


Canadian federal legislation allows a foreign judgment to be proven by an exemplification or certified copy purporting to be under the seal of the issuing court or under the hand or seal of the issuing judge, coroner or court stenographer. The authen-ticity of the seal or signature need not be proven (Canada Evidence Act, RSC, 1985, c C-5, section 23(1)). The provincial evidence statutes contain similar provisions, but restrict their application to the courts of Canada, Great Britain and the United States.

Otherwise, an action on a foreign judgment is often commenced by a statement of claim for the amount of the judg-ment and can be pursued by way of a motion for summary judg-ment. Judgment creditors and debtors should give due attention to the basic requirements for recognition and enforcement (see questions 2.2 and 2.3).


Recognition/enforcement of a foreign judgment may be chal-lenged on the following grounds: (a) the issuing court lacked jurisdiction; (b) fraud; (c) denial of natural justice; and/or (d) public policy.

To establish an absence of jurisdiction, a defendant must negate all of the grounds that might give the foreign court juris-diction. Any foreign judgment is presumed to issue from a court with jurisdiction until the contrary is shown.

A foreign judgment is conclusive on its merits and cannot be challenged domestically on the basis of an error in fact or law. However, a foreign judgment is not enforceable if it was obtained by fraud on the part of the party seeking to enforce it. The alleged fraud must be clearly made out and must be at the foundation of the impugned decision. Fraud going to jurisdic-tion can always be raised before a domestic court to challenge a foreign judgment. The merits of a foreign judgment can be challenged for fraud only where the allegations are new and not the subject of prior adjudication. The domestic court can refuse to recognise a foreign judgment where material facts not previ-ously discoverable arise that potentially challenge the evidence that was before the foreign court.

The courts may decline to enforce a foreign judgment if the proceedings in the foreign court were a denial of natural justice, i.e., contrary to the defendant’s right to notice and right to be heard. The defence of natural justice requires that the party seeking to impugn the judgment prove on the civil standard that the foreign proceedings were contrary to Canadian notions of fundamental justice. The defence is restricted to the form of the foreign procedure and to due process. The onus of proof in advancing the defence rests upon the defendant.

The defence of public policy prevents the enforcement of a foreign judgment contrary to the Canadian concept of justice and depends on whether a foreign law is contrary to the Canadian view of basic morality. The defence has a narrow application. To determine whether the enforcement of a foreign judgment would


58 Canada


Reciprocal Enforcement of Judgments Act (Alberta): The requirements are identical to those under The Reciprocal Enforcement of Judgments Act (Manitoba).

Although the above is representative of the legislation enacted in other Canadian provinces, please consult the relevant prov-ince’s legislation for particulars. See also questions 2.2, 2.3, 2.7 and 3.4, particularly with respect to the grounds on which the recognition and enforcement of a judgment can be challenged.


Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): No.Court Order Enforcement Act (British Columbia): No.Reciprocal Enforcement of Judgments Act (Manitoba): No.Reciprocal Enforcement of Judgments Act (Alberta): No.Enforcement of Foreign Judgments Act (Saskatchewan): While there is a distinction made between the concepts of recognition and enforcement, the same rules that determine whether a foreign judgment is unenforceable also apply in determining whether a foreign judgment is binding on the parties (i.e. whether it is recognised).

Although the above is representative of the legislation enacted in other Canadian provinces, please consult the relevant prov-ince’s legislation for particulars. See also question 2.5.


Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): The application for registration must be made within a period of six years after the date of the judgment. The practice and procedure governing registration (including notice to the judg-ment debtor and applications to set registration aside) shall be governed by the law of the registering court. The registering court may require that an application for registration be accom-panied by: (a) the judgment of the original court or a certified copy thereof; (b) a certified translation of the judgment, if given in a language other than the language of the territory of the registering court; (c) proof of the notice given to the defendant in the original proceedings, unless this appears from the judgment; and (d) particulars of such other matters as may be required by the rules of the registering court.

Court Order Enforcement Act (British Columbia): On application for registration, the Supreme Court may order that the judgment be registered. An order for registration may gener-ally be made without notice, but the application must be accom-panied by a certificate issued from the original court and under its seal and signed by a judge or the clerk of that court. The certificate must be in the prescribed form and must set out the particulars as to the matters mentioned in it. If a judgment is registered, the judgment, from the date of the registration, is of the same effect as if it had been a judgment given originally in the registering court.

Reciprocal Enforcement of Judgments Act (Manitoba): The application for registration must be accompanied by a certificate issued from the original court and under its seal and signed by a judge thereof or the clerk thereof. The certificate must be in the prescribed form and must set forth the particulars as to the matters therein mentioned. Where a judgment is registered, the judgment, from the date of registration, is of the same force and


While the common law facilitates a degree of uniformity across Canada, each Canadian province has authority to pass legis-lation that governs recognition of foreign judgments in that province. Although there is considerable overlap in the law among the provinces, there are also significant differences. For example, the limitation periods for bringing an action for recog-nition of a foreign judgment vary across the provinces (see ques-tion 2.13 and section 3).


Under Canadian case law, a foreign judgment is treated as a contract debt, and not as a domestic judgment, for the purpose of determining the limitation period that applies to the commence-ment of an action for recognition.

An action for recognition of a foreign judgment must be commenced within the limitation period for contract debts under the statute applicable in the province in which the judgment cred-itor seeks to enforce the judgment. In Ontario, for example, the applicable two-year limitation period begins to run, at the earliest, when the time to appeal the foreign judgment has expired or, if an appeal is taken, the date of the appeal decision. The limita-tion period may begin to run later, however, if a claim based on a foreign judgment was not discovered until a date later than the appeal decision. Discoverability generally arises when the judg-ment creditor under the foreign judgment knew or ought to have known that the judgment debtor had assets in Canada.



Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): Where a judgment has been given by a court of a reciprocating jurisdiction, the judgment creditor may apply to a court of the other reciprocating jurisdiction at any time within a period of six years after the date of the judgment (or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings) to have the judgment registered, and on any such application the registering court will order the judgment to be registered.

Court Order Enforcement Act (British Columbia): If a judg-ment has been given in a court in a reciprocating state, the judg-ment creditor may apply to have the judgment registered in the registering court unless the time for enforcement has expired in the reciprocating state or 10 years have expired after the date the judgment became enforceable in the reciprocating state.

Reciprocal Enforcement of Judgments Act (Manitoba): Where a judgment has been given in a court in a reciprocating state, the judgment creditor may apply to the registering court within six years after the date of the judgment to have the judg-ment registered in the registering court. On such application, the registering court may order the judgment to be registered. An order for registration may generally be made ex parte.




Reciprocal Enforcement of Judgments Act (Alberta): The grounds on which a foreign judgment can be challenged are identical to those under the Court Order Enforcement Act (British Columbia).


4 Enforcement


Once recognised, a foreign judgment is enforceable in the same manner as a domestic judgment. For example, depending on the factual context, enforcement may be effected through seizure and sale of real or personal property, garnishment of debts payable to the judgment debtor or an order for the appointment of an equitable receiver. In addition, the procedural rules in Canadian provinces provide for the examination under oath of a judgment debtor with respect to matters relating to the enforce-ment of a judgment.

5 Other Matters


Barer v. Knight Brothers LLC, 2019 SCC 13In this decision rendered in February 2019, the majority of the Supreme Court of Canada applied the Civil Code of Québec to determine when a foreign authority properly assumes juris-diction for the purposes of enforcing a foreign judgment in Québec. The Court held that a defendant submits to the juris-diction of a foreign court when the defendant presents substan-tive arguments, which, if accepted, would resolve the dispute or part of it on its merits. A subsequent judgment of the foreign court would then be enforceable in Québec.

Wei v. Li, 2019 BCCA 114In this decision rendered in April 2019, the majority of the British Columbia Court of Appeal held that a Canadian court can apply notional severance to foreign judgments and will not enforce interest provisions in foreign judgments that exceed the maximum rate allowed by the Criminal Code, notwithstanding that the interest was an integral part of the debt and that the defendants agreed to it.


Clients seeking to recognise and enforce a foreign judgment in Canada should be mindful of the applicable limitation periods. In most Canadian provinces, a client has two years from the discovery of a claim before an action is statute-barred. In this context, discoverability generally refers to the time at which the judgment creditor knew or ought to have known that the judg-ment debtor had assets in Canada, but clients should be aware of provincial differences. In Ontario, for example, the applicable two-year limitation period may begin to run from when the time

effect as if it had been a judgment given or entered originally in the registering court.

Reciprocal Enforcement of Judgments Act (Alberta): The requirements are identical to those under The Reciprocal Enforcement of Judgments Act (Manitoba).



Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): Registration of a judgment shall be refused or set aside if:(a) the judgment has been satisfied;(b) the judgment is not enforceable in the territory of origin;(c) the original court is not regarded by the registering court

as having jurisdiction;(d) the judgment was obtained by fraud;(e) enforcement of the judgment would be contrary to public

policy in the territory of the registering court;(f ) the judgment is a judgment of a country or territory other

than the territory of origin which has been registered in the original court or has become enforceable in the terri-tory of origin in the same manner as a judgment of that court; or

(g) in the view of the registering court, the judgment debtor either is entitled to immunity from the jurisdiction of that court or was entitled to immunity in the original court and did not submit to its jurisdiction.

Registration of a judgment may be set aside if: (a) the judgment debtor, being the defendant in the original

proceedings, either was not served with the process of the original court or did not receive notice of those proceed-ings in sufficient time to enable him to defend the proceed-ings and, in either case, did not appear;

(b) another judgment has been given by a court having juris-diction in the matter in dispute prior to the date of judg-ment in the original court; or

(c) the judgment is not final or an appeal is pending or the judgment debtor is entitled to appeal or to apply for leave to appeal against the judgment in the territory of origin.

Court Order Enforcement Act (British Columbia): No order for registration will be made if the court to which the application for registration is made is satisfied that:(a) the original court acted either without jurisdiction or

without authority;(b) the judgment debtor did not voluntarily appear or other-

wise submit during the proceedings to the jurisdiction of that court;

(c) the judgment debtor was not duly served with the process of the original court and did not appear;

(d) the judgment was obtained by fraud;(e) an appeal is pending or the time in which an appeal may be

taken has not expired;(f ) the judgment was for a cause of action that for reasons of

public policy or for some similar reason would not have been entertained by the registering court; or

(g) the judgment debtor would have a good defence if an action were brought on the judgment.

The Reciprocal Enforcement of Judgments Act (Manitoba): The grounds on which a foreign judgment can be challenged are identical to those under the Court Order Enforcement Act (British Columbia).


60 Canada


to appeal the foreign judgment has expired or, if an appeal is pursued, the date of the appeal decision. This may be different than the date on which the judgment creditor learns about the availability of assets in Ontario (see question 2.13).

In addition, clients should be cognisant that while the interest and costs portion of an award in a foreign judgment may be enforced, enforcement is not available upon an interlocutory and collateral order for costs made by a foreign court.




Erin Hoult’s practice focuses on complex commercial litigation, including infrastructure and procurement disputes, white-collar crime, and securities regulatory defence. Erin’s experience includes advising and acting for clients in business disputes, defence of regulatory charges, internal investigations, constitutional law matters, class actions, contract and negligence cases, and fraud recovery. Erin also has extensive experience addressing complex questions of conflict of laws in litigation and transactions involving cross-border issues.Erin has appeared as counsel at all levels of courts in Ontario, at the Supreme Court of Canada, and the Federal Court of Canada, as well as before arbitration panels and administrative tribunals.

Blake, Cassels & Graydon LLP199 Bay Street, Suite 4000Commerce Court WestToronto, ON M5L 1A9Canada

Tel: +1 416 863 4011Email: [email protected]: www.blakes.com

Blake, Cassels & Graydon LLP is one of Canada’s leading business law firms, representing many of Canada’s most prominent corporations, as well as international clients doing business in Canada. With offices in Montréal, Ottawa, Toronto, Calgary and Vancouver, and internationally in New York, London, and Beijing, the firm’s strength across industry sectors and propen-sity to transfer knowledge and expertise between offices and practices is a key strength. Blakes’ national litigation and dispute resolution practice is one of the largest and most successful in Canada, representing Canadian and inter-national clients on complex litigation in virtually every forum. The firm’s approach to litigation focuses on understanding clients, exploring all methods of dispute resolution and litigating when appropriate. The group also has an extensive background in domestic and international commer-cial arbitration, and mediation.For more information on our firm and our Litigation & Dispute Resolution Group, visit:

www.blakes.com

Josianne Rocca has a diverse civil and commercial litigation practice. She has experience in a number of areas, including complex tort and contractual disputes, class actions, product liability and employment and labour-related litigation matters. Josianne completed her articles at the firm in 2016/2017.Josianne has appeared as counsel at the Small Claims Court and Superior Court of Justice in Ontario.

Blake, Cassels & Graydon LLP199 Bay Street, Suite 4000Commerce Court WestToronto, ON M5L 1A9Canada

Tel: +1 416 863 3890Email: [email protected]: www.blakes.com



Chapter 1162

China

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

China

The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements Between Parties Concerned 2008 (“Chinese Mainland–Hong Kong SAR Arrangement 2008”)

Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong SAR”)

Section 3

The Arrangement between the Mainland and Macau Special Administrative Region on the Mutual Acknowledgment and Enforcement of Civil and Commercial Judgments 2006 (“Chinese Mainland–Macau SAR Arrangement”)

Macau Special Administrative Region of the People’s Republic of China (“Macau SAR”)

Section 3

The Provisions of the Supreme People’s Court on Recognition and Enforcement of the Civil Judgments of Courts of the Taiwan Region 2015 (“Chinese Mainland–Taiwan Region Provisions”)

Taiwan Region Section 3

1 Country Finder





Civil Procedure Law of the People’s Republic of China (“CPL”) and Interpretations of the Supreme People’s Court on Applicability of the Civil Procedure Law Zhu Shi [2015] No 5 (“SPC Judicial Interpretation”)

Jurisdictions which have no treaty with China

Section 2

34 Bilateral Treaties between China and another Country (France, Italy, Russia, Ukraine, Spain, Hungary, Morocco, United Arab Emirates, Brazil, Poland, Mongolia, Belarus, Argentina, Viet Nam, Turkey, Egypt, Greece, Cyprus, Kazakhstan, Romania, Bulgaria, Cuba, Kyrgyzstan, Tajikistan, Uzbekistan, Tunisia, Peru, Algeria, Kuwait, Bosnia-Herzegovina, Ethiopia, Laos, Lithuania and the DPRK)

Jurisdictions which have concluded bilat-eral treaties with China with special provi-sions governing the recognition and enforcement of foreign judg-ments in civil and commercial matters

Section 3


63Boss & Young, Attorneys-at-Law


domestic court. The enforcement of foreign judgments is the proce-dure with which the domestic court compels the parties to enforce the foreign judgment by using its coercive force. Therefore, the recognition is the prerequisite for enforcement, and the enforcement is the result of recognition. In judicial practice of China, the parties may apply for recognition and enforcement at the same time, or apply for recognition or enforcement respectively.


The general procedure for recognising and enforcing a foreign judgment in China shall include the following steps:

Firstly, an application shall be submitted to the intermediate people’s court with jurisdiction under CPL, which is accompa-nied by the original or a certified true copy of the foreign judg-ment and its Chinese translation (if not). The applicant to the domestic court for recognition and enforcement of a foreign judgment shall be the parties or the foreign court under CPL unless otherwise specified in the bilateral treaties.

Secondly, after accepting the recognition or/and enforcement application, the court with jurisdiction under CPL shall serve the application to the respondent and then examine the applica-tion with or without a full oral hearing determined by the court.

Finally, if the court considers that the foreign judgment meets the conditions for recognition after trial, it shall make a written order to recognise that the foreign judgment has legal effect in China; if it needs to be enforced, an enforcement order shall be issued and the enforcement shall be carried out in accordance with CPL on the enforcement of domestic judgments. If, after trial, it is found that the conditions for recognition are not met, the foreign judgments shall not be recognised or enforced.


A foreign judgment to be recognised and enforced can be chal-lenged in case of any of the following circumstances:(1) The foreign court that makes the judgment has no jurisdic-

tion over the case. (2) According to the law of the country where the foreign

court making the judgment is located, the respondent has not been legally summoned, or the party without litigation capacity has not been properly represented.

(3) The judgment is obtained through fraud and bribery.(4) The Chinese court has made a judgment on the same dispute,

or is trying the case before the court making the judgment; or the courts of Hong Kong SAR, Macau SAR, Taiwan Region or a third country have made a judgment on the same dispute, which has been recognised by the Chinese court.

(5) The recognition and enforcement of the judgment will violate the basic principles of the laws of the People’s Republic of China or the sovereignty, security and public interests of the state.

(6) Other situations stipulated by the laws of China. The limitation period of two years shall apply to the recogni-

tion and enforcement of a foreign judgment, unless otherwise specified in applicable bilateral treaties.


In case that the foreign court making divorce judgments has a

2 General Regime


Where there are no bilateral and multilateral agreements, a foreign judgment in civil and commercial matters may generally be recognised and enforced in China under the principle of reci-procity in accordance with Civil Procedure Law of the People’s Republic of China (“CPL”) and Interpretations of the Supreme People’s Court on Applicability of the Civil Procedure Law Zhu Shi [2015] No 5 (“SPC Judicial Interpretation”).


A “judgment” to be recognised and enforced in China shall refer to the effective legal documents such as judgments or rulings made by foreign courts in civil and commercial cases or in crim-inal cases concerning the payment of a certain amount of money by one party to the other party.


In form, a foreign judgment to be recognised and enforced in China shall be the original or certified true copy of the legally effective judgment made by the foreign court with an applica-tion in Chinese; if the civil and commercial judgments and other documents submitted by the applicant are in a foreign language, they shall be accompanied by a Chinese translation with the seal of the translation agency and the signature of the trans-lator. Documents formed outside China shall go through the notarisation and certification procedures according to law, or perform the corresponding certification procedures according to the judicial assistance treaties signed by the related country.

In substance, the judgment must be effective, not be subject to appeal at any adjudicatory level and not be contrary to the basic principles of the laws, sovereignty, security or public inter-ests of China (Article 281, CPL).


There does not exist any specific connection with Mainland China for recognition and enforcement of a foreign judgment under CPL. Normally in the event that the debtor of the foreign judgment is resi-dent of or has domicile or property in Mainland China, the general principles to recognise and enforce a judgment shall be applied.


In China, the recognition of judgments and the enforcement of judg-ments are two different and closely related procedures. The recogni-tion of judgments means that the foreign judgments have the same legal effect as the domestic judgments, and the rights and obligations determined in the foreign judgments have been confirmed by the


64 China



The laws on recognition and enforcement of foreign judgments, mostly CPL and SPC Judicial Interpretation, are uniformly applicable throughout Mainland China. Hong Kong, Macau and Taiwan are each regarded as a separate jurisdiction and have their own rules.


Under CPL (Article 239) and SPC Judicial Interpretation (Article 547), the limitation period for applying for enforcement of a foreign judgment is two years unless otherwise specified in bilateral treaties.



The general form requirement is that the judgment shall be a conclusive determination to substantive matter(s), irrespective of its name or form.(1) Bilateral Treaties All the treaties require that the foreign judgment shall

be legally effective and final under the law of the judgment-rendering state.

(2) Chinese Mainland–Hong Kong SAR Arrangement 2008 For a Hong Kong judgment to be recognised and enforced

in Mainland China:a. The Hong Kong judgment must be in relation to a

commercial contract entered into after 1 August 2008.b. The commercial contract to which the judgment

relates must provide for the exclusive jurisdiction of the Hong Kong courts.

c. The Hong Kong judgment must be final and require the payment of a sum of money in a civil or commercial case.

d. Recognising and enforcing the Hong Kong judgment is not against the public interests of Mainland China.

(3) Chinese Mainland–Macau SAR Arrangement For a Macau judgment to be recognised and enforced in

Mainland China:a. The judgment shall be effective, and rendered in a civil

or commercial case, including civil labour disputes, or is related to civil damages involved in criminal cases.

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 otherwise, the applicant may apply for recog-nition only.

c. The recognition and enforcement of the judgment is not contrary to the basic principles of law or public interests of Mainland China.

(4) Chinese Mainland–Taiwan Region Provisions For a Taiwan judgment to be recognised and enforced in

Mainland China, the judgment shall be civil in nature and effective.

mutual assistance with China under bilateral treaties, the related foreign judgment shall be recognised and enforced in accord-ance with the provisions of the agreement.

When there is no mutual legal assistance agreement, the parties concerned may apply to the People’s Court for recognition of the divorce judgment of the foreign court according to the Provisions of the Supreme People’s Court on the Procedure for the Application for Recognition of Divorce Judgements of Foreign Courts and the Provisions of the Supreme People’s Court on the Issues Concerning the People’s Court’s Acceptance of Applications for Recognition of Divorce Judgement Cases of Foreign Courts.

The Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region has been signed on 20 June 2017 (“Chinese Mainland–Hong Kong SAR Arrangement 2017”), which aims to ensure that parties in the Hong Kong SAR and Chinese Mainland can enforce relevant civil judgments in matrimonial and family cases through a clear and effective legal regime. However, the Chinese Mainland–Hong Kong SAR Arrangement 2017 has not yet entered into force in China and Hong Kong SAR.


The Chinese courts may refuse the recognition and enforcement of a foreign judgment in case that the domestic court has made a judgment on the same dispute, or is trying the case before the court making the judgment.


As Chinese courts will not review the substance of a foreign judgment when examining an application to recognise and enforce foreign judgments, it is unlikely that a foreign judgment will be refused recognition and enforcement simply because there is a conflicting local law, unless such foreign judgment is contrary to Mainland China’s public policy.

There is no provision in CPL or SPC Judicial Interpretation regulating recognition or enforcement of a foreign judgment when there is a prior judgment on the same or a similar issue, but between different parties. However, if the foreign judgment is in essence in conflict with the prior Chinese effective judgment, there is risk that the foreign judgment will be refused recogni-tion and enforcement.

Under Article 282 of CPL, a foreign judgment will not be recognisable or enforceable in Mainland China if its recogni-tion or enforcement contravenes the fundamental principles of Chinese law.


A foreign judgment that purports to apply the law of China is still a judgment of a foreign court. The general rules applicable to the recognition and/or enforcement of foreign judgments will apply.




applicant may apply for recognition and enforcement with the court of another jurisdiction for any part not fulfilled.

An application for recognition and enforcement shall be accompanied with the duplicate of the judgment or the certification by the judgment-rendering court, and the following documents issued by the judgment-rendering court or the competent institution that can prove the following matters unless these matters have been proved by the judgment:a. The party against whom the recognition and enforce-

ment is sought was duly summoned.b. The party with no legal capacity to partake in litigation

had proper representation.c. The judgment has been served on the parties according

to the law of the place where the judgment is rendered and has come into effect.

d. Identification documents of the applicant.e. The certification issued by the judgment-rendering

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 of the applicant, take interim measures against the prop-erty of the judgment debtor.

After a Chinese court has made its decision on whether to recognise and enforce the Macau judgment, or has a made a ruling during the enforcement procedure, a party may apply to the higher court for reconsideration or remedies.

(4) Chinese Mainland–Taiwan Region Provisions An application for recognition of a Taiwan judgment shall

be lodged with the intermediate people’s court either at the place where the judgment creditor or judgment debtor is domiciled or habitually resides, or where the judgment debtor’s properties are located.

The applicant must file a written application, the original of the judgment, and the original or certified true copy of the certificate concerning the judgment, the documentary proof that the Taiwan judgment is true and legally effec-tive and in the event of a default judgment, the documen-tary proof that the party against whom the recognition is sought was duly summoned in the litigation.

Where the court decides not to accept the application because the above-mentioned conditions are not met, the applicant may appeal against the decision.

Before or after the court accepts an application for recogni-tion, it may, upon the request of the applicant, take interim measures against the property of the judgment debtor.

After the court has made its decision of whether to recog-nise and enforce the Taiwan judgment, a party may apply to the higher court for reconsideration.


(1) Bilateral Treaties Grounds to challenge recognition and enforcement of a

judgment under bilateral treaties generally include:(a) The judgment is not legally effective. For example, as reported by SPC in previous cases,

the foreign judgment is ineffective because it fails to be properly served and contravenes Mainland China’s reservation to the Hague Service Convention or the bilateral treaty to which Mainland China is a party.

(b) The judgment-rendering court does not have jurisdic-tion over the case to which the judgment is rendered.


Recognition vests in foreign judgments the same legal force and effect as that of Chinese judgments. Enforcement entails compulsory measures against the judgment debtor if the debtor does not fulfil the judgment.

Neither the Hong Kong Arrangement nor the Macau Arrangement specifies any difference between recognition and enforcement of Hong Kong/Macau judgments in Mainland China.

Under the Taiwan Provisions, there is a requirement that an applicant must apply either for recognition of a Taiwan judg-ment prior to seeking enforcement thereof, or alternatively for both recognition and enforcement in the same application (Article 3, Taiwan Provisions).


(1) Bilateral Treaties Bilateral treaties generally require the following to be

submitted together with the application for recognition and enforcement:a. duplicate of the judgment and proof of effectiveness

thereof if it is not specified in the judgment; andb. proof of due service on the respondent against

whom recognition and enforcement of the judgment is sought, and proof of proper representation, if the respondent was of civil incapacity.

Except for as provided in the treaties, procedures of recog-nition and enforcement are subject to the domestic proce-dural rules.

(2) Chinese Mainland–Hong Kong SAR Arrangement 2008 An application for recognition and enforcement of a

Hong Kong judgment shall be filed with the intermediate people’s court at the place where the judgment debtor is domiciled or habitually resides or where the judgment debtor’s properties are located.

The applicant must file a written application, a copy of the judgment affixed with the seal by the judgment-rendering court, a certificate issued by the Hong Kong court confirming that the judgment is final and the applicant’s identification documents.

Before or after accepting an application for recogni-tion and enforcement, the court may, if the applicant so requests, order an attachment of property or take other compulsory measures against the judgment debtor.

After a Chinese court has made its decision of whether to recognise and enforce the Hong Kong judgment, a party may apply to the higher court for reconsideration.

(3) Chinese Mainland–Macau SAR Arrangement An application for recognition and enforcement of a Macau

judgment shall be filed with the intermediate people’s court at the place where the judgment debtor is domiciled or habitually resides or where the judgment debtor’s prop-erties are located.

If the party against whom the application is filed has prop-erty in both jurisdictions, the applicant may file an appli-cation for recognition and enforcement with the court of either jurisdiction. After the court of one jurisdic-tion enforces but fails to fully enforce the judgment, the


66 China


In judicial practice, a Hong Kong judgment may also be declined recognition and enforcement if the judg-ment is not final, or the time limit of two years to apply for the recognition and enforcement has expired, or the judgment is not one that requires the payment of a sum of money in a civil or commercial case.

(3) Chinese Mainland–Macau SAR Arrangement (Article 11) The grounds for refusing recognition and enforcement of

a Macau judgment include:(a) The judgment relates to a subject matter in respect of

which the Chinese courts have exclusive jurisdiction according to Chinese law.

(b) There is ongoing litigation in Chinese courts commenced prior to the issuance of the Macau judg-ment and the Chinese courts have jurisdiction over the ongoing litigation.

(c) A judgment or arbitral award has been rendered on the same subject matter by a court or an arbitral tribunal, and such judgment or arbitral award has been recog-nised or enforced by a Chinese court.

(d) The party against whom the Macau judgment was rendered had not been duly summoned or was not properly represented in the Macau proceedings.

(e) According to the laws of the place where the judgment is rendered, the judgment is not legally effective or its enforcement has been stayed for retrial.

(f ) Recognition and enforcement of the Macau judgment is contrary to the principles of Chinese law or the social or public interests of Mainland China.

In judicial practice, a Macau judgment may also be declined recognition or enforcement if the time limit of two years to apply for the recognition and enforcement has expired, or the judgment is not rendered in a civil or commercial case or related to civil damages involved in criminal cases.

(4) Chinese Mainland–Taiwan Region Provisions (Article 15) The grounds for refusing recognition of a Taiwan judg-

ment include:(a) The party against whom the Taiwan judgment is

rendered was not duly summoned in the event of a default judgment, or was not duly represented where the party lacked legal capacity to partake in litigation.

(b) The judgment relates to a subject matter in respect of which the Mainland Chinese courts have exclusive jurisdiction.

(c) The parties have entered into an effective arbitration agreement over the dispute to which the judgment relates and there is no circumstance under which the jurisdiction conferred by the arbitration agreement has been waived.

(d) A judgment or arbitral award has been rendered over the same dispute by a Mainland Chinese court or arbi-tral tribunal in Mainland China.

(e) A judgment has been rendered by a court in Taiwan, Hong Kong, Macau or a foreign country over the same dispute and the judgment has been recognised by a Mainland Chinese court.

(f ) An arbitral award has been rendered by an arbitral tribunal in Taiwan, Hong Kong, Macau or a foreign country over the same dispute and the arbitral award has been recognised by a Mainland Chinese court.

(g) Recognition of the judgment is contrary to the prin-ciples of Mainland Chinese law including the “One China” principle or the social or public interests of Mainland China.

According to judicial practice, a Taiwan judgment may also be declined recognition and enforcement if the judgment is not authentic and effective, or the time limit of two years

Generally, there are three types. Type 1 simply requires the foreign judgment not to be within the exclusive jurisdiction of the recognising and enforcing state. Type 2 requires the judgment-rendering court to have complied with the jurisdiction requirements of the recognising and enforcing state. Type 3 sets out a laundry list of acceptable jurisdictional bases, which, however, are still subject to the exclusive jurisdiction of the recognising and enforcing state.

(c) The proceedings of the judgment violate due process requirements.

Most of the bilateral treaties provide that the defendant must have been summoned if absent from the proceedings, and the defendant lacking legal capacity must have been duly represented in the proceedings. There are also treaties providing for an additional requirement, namely, the defendant has been provided with the opportunity to properly defend itself in the litigation.

(d) There are parallel judgments or proceedings. Most of the bilateral treaties provide that recognition

or enforcement may be rejected if the recognising and enforcing state has already made a judgment, has an ongoing proceeding, or has enforced a judgment from a third country between the same parties and the subject matter of which is the same. Under some treaties, to refuse recognition and enforcement on the ground of ongoing parallel proceedings, such ongoing proceed-ings must be initiated prior to the one which rendered the judgment seeking recognition or enforcement.

(e) The judgment is contrary to the public policy of the recognising and enforcing state.

SPC has at least confirmed one situation in this regard. Service of judicial documents by way of post in viola-tion of the applicable Hague Service Convention or the bilateral treaty is regarded as contrary to China’s judicial sovereignty.

(f ) Other grounds. For example, the application has exceeded the time limit of two years.

(2) Chinese Mainland–Hong Kong SAR Arrangement 2008 (Article 9)

The grounds for refusing recognition and enforcement of a Hong Kong judgment include:(a) There is no written agreement that provides for the

exclusive jurisdiction of the Hong Kong court, or the choice of court agreement providing for the exclusive jurisdiction of the Hong Kong courts is invalid under Hong Kong law.

(b) The judgment has been fully satisfied.(c) The judgment relates to a subject matter in respect of

which the Chinese courts have exclusive jurisdiction under Chinese law.

(d) The party who was absent from the court hear-ing(s) and against whom the Hong Kong judgment is rendered has not been summoned according to Hong Kong law, or had been summoned according to Hong Kong law but had not been given the time to defend itself as required by law.

(e) The judgment has been obtained by fraud.(f ) A judgment or arbitral award has been rendered on

the same subject matter between the same parties by a Chinese court, a court of a different jurisdiction or an arbitral tribunal, and such judgment or arbitral award has been recognised or enforced by a Chinese court.

(g) The Chinese court considers that the recognition and enforcement of the Hong Kong judgment is contrary to the social or public interests of Mainland China.




5 Other Matters


On 18 January 2019, the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region was signed, but it is not yet effective.

China signed the 2005 Hague Convention on the Agreement on Choice of Courts on 12 September 2017, which has not yet been ratified. The ratification of the Convention and its entry into force in China will further improve China’s current interna-tional system of mutual legal assistance in civil and commercial matters and enrich its relevant judicial practice.

On 2 July 2019, at the 22nd Diplomatic Congress of the Hague Conference on Private International Law, representatives of China signed the Final of Act of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Convention”). The 2019 Hague Judgment Convention, which is regarded as the game changer to the global regime of recognition and enforcement of foreign judgments, aims to create a uniform set of core rules on recogni-tion and enforcement of foreign judgments so that a new regime of the global circulation of foreign judgments is established.


A default judgment may be recognised and enforced only if the applicant (judgment creditor) can submit documents proving that the judgment debtor was duly served or the judgment expressly stated the fact of proper service in China, thus impor-tant attention shall be paid to due service requirement.

to apply for the recognition and enforcement has expired. In another case, an intermediate people’s court ruled that a Taiwan judgment was not effective because the applicant did not submit the original or a certified true copy of the judgment to the court for verification.

4 Enforcement


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:(1) An enquiry into the assets of the judgment debtor in

Mainland China by: (a) compelling the judgment debtor to disclose its assets; (b) making enquiries with the relevant authorities or

organisations for information concerning the judg-ment debtor’s assets; and/or

(c) ordering a search of the residence or office premises of the judgment debtor and any other places where its assets might be kept (Articles 242 and 248, CPL and Article 34, SPC’s Interpretations on Questions regarding Application of the Enforcement Procedure under the Civil Procedure Law).

(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).

(4) Compulsory eviction of the judgment debtor from building or land (Article 250, CPL).

(5) Transfer of licences or certificates conferring rights on the judgment debtor (Article 251, CPL).

(6) Imposition of restrictions on the judgment debtor by, for example, informing the relevant government departments to restrict the judgment debtor from leaving Mainland China and recording the judgment debtor’s failure to perform its obligations under the judgment in the credit reference system maintained by the People’s Bank of China (Articles 255, CPL).

(7) And a media announcement of the judgment debtor’s failure to perform its obligations under the judgment (Article 255, 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 Confererence 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. Furthrermore, 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 Confernec 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.

Boss & Young, Attorneys-at-Law12th–15th Floors, 100 Bund Square100 South Zhongshan Road Huangpu District, Shanghai, 200010China

Tel: +86 21 2316 9090Email: [email protected]: www.boss-young.com

Boss & Young, Attorneys-at-Law (“Boss & Young”), as one of the largest Chinese law firms headquartered in Shanghai, was formed by the merger of the original Boss & Young, Attorneys-at-Law and another law firm in January 2014. Boss & Young is a full-scale law firm which has branch offices in Beijing, Nanjing, Wuhan, Chongqing, Hangzhou, and Ningbo with more than 40 senior partners and 200 lawyers. Since its inception, Boss & Young has demonstrated remarkable agility in navigating China’s complex legal system, while simultaneously meeting the sophisticated needs and expectations of its domestic and foreign clientele.Boss & Young’s main practice areas include inbound and outbound invest-ment, capital market, corporate finance, M&A, restructuring and reorganisa-tion, real estate and construction, international trade, international dispute resolution, intellectual property, banking, trust and insurance, etc. Boss & Young has a team of leading lawyers who are experienced in international dispute resolution, especially in the areas of International Commercial Transaction, IP Rights, Finance, Real Estate Development and Maritime. Boss & Young’s expertise in litigation and arbitration has complemented its corporate and commercial practice to the great satisfaction of its domestic and overseas clients.

www.boss-young.com


China



Chapter 12 69

Croatia

Macesic and Partners LLC Anita Krizmanic

Croatia

d. Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 10 June 2007 (Lugano Convention).

EU Member States, Iceland, Norway and Switzerland.

Section 3.

e. Convention on the Contract for the International Carriage of Goods by Road (CMR) of 19 May 1956.

All Signatory States and Parties to the Convention.

Section 3.

f. Convention Concerning International Carriage by Rail (COTIF) of 9 May 1980.


Section 3.

(ii) Bilateral treaties concluded between the Republic of Croatia and other Sovereign States.

Austria (regarding maintenance obli-gations), Belgium (regarding main-tenance obliga-tions), Bosnia and Herzegovina, Bulgaria, Czech Republic, France, Greece, North Macedonia, Poland, Romania, Slovenia, Slovakia, the Russian Federation and Turkey.

Section 3.

2 General Regime


Recognition and enforcement of a foreign court judgment is generally regulated by PILA and EA, unless regulated by EU law and/or international treaties.

1 Country Finder





General regime for recognition and enforcement of judgments: (i) Private International Law Act (PILA); and(ii) Enforcement Act (EA).

All jurisdictions, unless regulated by EU law and/or international treaties.

Sections 2 and 4.

Special regimes for recognition and enforcement of judgments:(i) Multilateral treaties:a. Hague Convention of 1 March 1954 on Civil Procedure.


Section 3.

b. Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.


Section 3.

c. Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance.


Section 3.


70 Croatia


competent foreign court or other competent agency that the judgment is enforceable under the laws of the country of origin is also required (Art. 67 PILA).


According to PILA, no connection to the jurisdiction is required for Croatian courts to accept jurisdiction for recognition and enforcement of a foreign judgment.


In Croatian law, there is a difference between recognition and enforcement of judgments.

RecognitionA foreign judgment recognised by a Croatian court is equal to a domestic judgment and has legal effect in Croatia (Art. 66 para 1 PILA).

EnforcementEnforcement entails a compulsory fulfilment of claims through enforcement actions prescribed by EA on various objects of enforcement (real estate, moveable assets, monetary claims, etc.) based on enforceable or certified documents (court judgments, court settlements, arbitral awards, etc.).

According to the law and court practice, enforcement based on a foreign judgment may be ordered and conducted in Croatia provided that the judgment satisfies all requirements for its recognition (see question 2.3 above) or if such a possibility is prescribed by law, an international treaty or EU law directly applicable in Croatia (Art. 19 EA).


The motion for recognition is filed with the competent court (Art. 72 para 1 PILA).

PILA does not prescribe the form of the motion nor the neces-sary documentation supporting the motion for recognition. According to court practice, the motion must include personal information about the applicant and the opposing party, informa-tion about the judgment as well as any other information neces-sary for the court to resolve the matter. Pursuant to the provi-sions of PILA, the motion must be supported by a confirmation of finality of the judgment in the country of its origin. Therefore, the following is to be submitted to the competent Croatian court:(i) the original foreign judgment;(ii) a confirmation from the competent foreign court or other

competent agency that the judgment is final under the laws of that country;

(iii) a certified translation of the judgment into the Croatian language;

(iv) if the judgment is based on the absence of the defendant before the court, a confirmation from the foreign court that the defendant was duly summoned to participate in the proceedings;

(v) power of attorney if the applicant is represented by an attorney;

(vi) a copy of the certificate of citizenship (of the applicant); and(vii) court taxes.


A “judgment” capable of recognition and enforcement is a foreign court decision in a civil matter finally resolving a dispute between the parties. “Civil matters” include matters of personal status, family and property matters as well as any other substantive matters.

Under the provisions of PILA, the term “foreign court deci-sion” includes:(i) decisions of a foreign court;(ii) settlements reached before a foreign court (court settle-

ments); and(iii) decisions of other foreign State agencies which are consid-

ered equal to court decisions or court settlements in the State of that decision’s origin, provided that the decision regulates “private law matters with international attrib-utes” (Art. 1 and 66 PILA).

Only a condemnatory judgment ordering the defendant to carry out, undergo or refrain from a specific action may be enforced. A judgment regulating rights only (declarative or constitutive judgment or award) does not require enforcement and is therefore not enforceable.


According to PILA, a judgment must satisfy the following posi-tive (must exist) and negative requirements (must not exist) in order to be recognised and enforced. (i) Negative requirements – a foreign judgment shall not be

recognised:(i.i) if the Croatian court or other agency has exclusive

competence over the matter (Art. 69 para 1 PILA);(i.ii) if it is determined that the person, against which the

judgment was rendered, was prevented from taking part in the proceedings due to procedural irregularities (determined only upon the objection of the opposing party) (Art. 68 PILA);

(i.iii) if it is contrary to ordre public of the Republic of 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 court (Art. 70 para 1 PILA);

(i.v) if another foreign court decision was reached on the same matter between the same parties and the said foreign court decision became final earlier and has already been recognised or is suitable to be recognised in the Republic of Croatia (Art. 70 para 1 PILA);

(i.vi) if the court established jurisdiction exclusively based on the defendant’s location or the location of the defendant’s assets in the State of the court, and said presence is not directly linked with the proceedings’ merits (Art. 69 para 2 PILA); and

(i.vii) if the court established jurisdiction contrary to the provi-sions of Chapter II, Sections 3 (Jurisdiction in matters related to insurance), 4 (Jurisdiction over consumer contracts) and 5 (Jurisdiction over individual contracts of employment) of Regulation (EU) No. 1215/2012 of 12 December 2012 (Art. 69 para 3 PILA).

(ii) Positive requirement – A foreign judgment shall be recog-nised if the applicant seeking recognition of the judgment provides confirmation from the competent foreign court or another competent agency that the judgment is final under the laws of the country of origin. If the judgment is also subject to enforcement, confirmation from the


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decision on the same matter between the parties has already been reached by a Croatian court (Art. 70 para 1 PILA).

(b) If proceedings on the same matter initiated earlier between the parties are pending before a Croatian court, the court deciding on recognition will order stay of proceedings until the pending court proceedings are finalised (Art. 70 para 2 PILA).


(a) PILA does not prescribe the effect of a conflicting law to recognition and enforcement of a foreign judgment. However, in such cases the foreign judgment may not be recognised if the court finds the judgment is contrary to ordre public of the Republic of Croatia.

(b) PILA does not prescribe the effect of a conflicting prior judgment on the same or similar issue between different parties to recognition and enforcement of a foreign judg-ment. In recognition proceedings the court only deter-mines if requirements for recognition are met (see question 2.3 above) and if they are, the foreign judgment should be recognised and enforced by the Croatian court.


PILA does not prescribe the effect of a foreign judgment applying Croatian law to its recognition and enforcement. If the foreign judgment satisfies all of the prescribed requirements (see question 2.3 above) it should be recognised and enforced by the Croatian court.


Recognition and enforcement of foreign judgments is uniformly regulated in the entire country.


PILA does not prescribe a limitation period for recognition and enforcement of foreign judgments; however, claims determined by final court judgments become time-barred after 10 years (Art. 233 Civil Obligations Act).



Hague Convention of 1 March 1954 Orders for costs and expenses of the proceedings shall be

During the proceedings the court will determine whether the judgment satisfies the requirements prescribed for its recogni-tion (see question 2.3 above).

The court decides on the recognition of the judgment via a court order. The parties may appeal the order.

If a foreign judgment is not already recognised by a final court order issued in recognition proceedings, any court in Croatia may decide on the recognition of a foreign judgment as a prelim-inary issue during other court proceedings; however, such recog-nition has legal effect only within those particular proceedings (Art. 72 para 3 PILA).

If the foreign judgment is final and enforceable, the motion for recognition and enforcement of the judgment may be filed with the competent court (Art. 71 para 1 PILA). In that case, the confirmation from the competent foreign court or other competent agency that the judgment is enforceable under the laws of country of origin must be submitted.

After the judgment is recognised in the Republic of Croatia, the foreign judgment is considered equal to a domestic judgment (see question 2.5 above). The enforcement of the judgment is then ordered and conducted in accordance with EA.

The motion for enforcement of the judgment must include a reference to the judgment for which the enforcement is sought. The original foreign judgment supported by a confirmation from the Croatian court on recognition of the judgment and a certified translation of the judgment into the Croatian language must be submitted with the motion.

If the motion is found to have grounds and it is supported by all necessary documentation, the court will issue an Enforcement Order. The parties may appeal the Enforcement Order.

Enforcement based on a foreign judgment may also be ordered and conducted based on a foreign judgment without conducting 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 Croatia (Art. 19 EA). According to the law and court practice, the court then decides about the recognition of a foreign judgment as a preliminary issue with legal effect only within enforcement proceed-ings (Art. 71 para 3 PILA) (see above under “Recognition”).


The opposing party may challenge recognition and enforcement 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).


In Croatian law, there is no legal framework applicable to recog-nition and enforcement of foreign judgments relating to specific subject matters, apart from special regimes set out in interna-tional treaties and EU law (see section 3 below).


(a) A foreign judgment shall not be recognised if a final court


72 Croatia


(iii) a judgment is reached by a competent court (treaties with Austria, Belgium, Czech Republic and Slovakia, France, Greece, Romania and Russia); and

(iv) the party that was not capable of participating in the proceedings had to have been duly represented (trea-ties with Bosnia and Herzegovina, Czech Republic and Slovakia, France, North Macedonia, Russia, Slovenia and Turkey).


Hague Convention of 1 March 1954 The Convention only governs enforcement (see question 3.1 above).

Hague Convention of 19 October 1996 The Convention differs between recognition and enforcement of measures. Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforce-ment, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State (Art. 28).

Hague Convention of 23 November 2007 The Convention specifies a difference between recognition and enforcement. Decisions that were recognised and declared enforceable may be enforced in the State addressed according to Chapter VI of the Convention.

Lugano ConventionThe Convention differs between recognition and enforcement and ascribes the same effect as in Croatian law.

CMR and COTIFThe Conventions do not regulate the recognition of judgments, only enforcement.

Bilateral treatiesAlmost all treaties (except with Bosnia and Herzegovina, North Macedonia, Slovenia and Turkey) differ between recognition and enforcement but do not prescribe legal effects, which is similar according to Croatian law. Some of the treaties explicitly prescribe legal effects of recognition or enforcement (Bulgaria, Greece and Poland), which are similar according to Croatian law.


Hague Convention of 1 March 1954 The order for costs and expenses shall be rendered enforce-able without a hearing (Art. 19 para 1) and without charge by a competent authority (Art. 18 para 1). The competent authority 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 1996The recognition and enforcement procedures are governed by the law of the State addressed (Art. 24 and 25). Therefore, Croatian law applies.

rendered enforceable in the country where enforcement is sought if, under the law of the country where the judgment was rendered, the copy of the judgment fulfils the conditions required for its authenticity, if the decision has the force of res judicata and if the decision is worded in the language of the authority addressed, agreed language or translated (Art. 19 para 2).

Hague Convention of 19 October 1996The Convention does not specifically prescribe requirements the measures have to satisfy in order to be recognised and enforced. The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States (Art. 23 para 1). If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they will be declared enforceable in that other State according to the procedure provided in the law of the latter State (Art. 26 para 1).

Hague Convention of 23 November 2007A decision made in one Contracting State (“the State of origin”) shall be recognised and enforced in other Contracting States if requirements prescribed by Art. 20 para 1 are satisfied. A deci-sion shall be recognised only if it has effect in the State of origin and shall be enforced only if it is enforceable in the State of origin (Art. 20 para 6).

A maintenance arrangement made in a Contracting State shall be entitled to recognition and enforcement as a decision, provided that it is enforceable as a decision in the State of origin (Art. 30 para 1).

Lugano ConventionA judgment given in a State bound by the Convention shall be recognised in the other States bound by the Convention without any special procedure being required (Art. 33 para 1). A judgment given in a State bound by the Convention and enforceable in that State shall be enforced in another State bound by the Convention when it has been declared enforceable there (Art. 38 para 1).

CMRWhen a judgement entered by a court or tribunal of a contracting country in legal proceedings arising out of carriage under the Convention (Art. 31 para 1) has become enforceable in that country, it shall also become enforceable in each of the other Contracting States, as soon as the formalities required in the country concerned have been complied with (Art. 31 para 3).

COTIFJudgments 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 States on completion of the formalities required in the State where enforcement is sought (Art. 12 para 1). This also applies to judi-cial settlements (Art. 12 para 1) but does not apply to provision-ally enforceable judgments, nor to awards of damages in addition to costs against a plaintiff who fails in their action (Art. 12 para 2).

Bilateral treatiesAll of the bilateral treaties regulate recognition and enforcement of court decisions and settlements.

Requirements for recognition and enforcement may be summed up as follows: (i) a judgment must be final and enforceable in the country of

origin; (ii) in case of decision by default, the summons or court order

initiating the proceedings have to be duly and timely deliv-ered to the losing/absent party (all treaties except with Russia);


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Lugano ConventionA judgment shall not be recognised:1. if such recognition is manifestly contrary to public policy

in the State in which recognition is sought;2. where it was given in default of appearance, if the

defendant was not served with the document which insti-tuted the proceedings or with an equivalent document in sufficient time and in such a way as to enable them to arrange for their defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for them to do so;

3. if it is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought; and

4. if it is irreconcilable with an earlier judgment given in another State bound by this Convention or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State addressed (Art. 34).

A judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Title II, or in a case provided for in Art. 68. Furthermore, a judgment may be refused recognition in any case provided for in Art. 64(3) or 67(4) (Art. 35 para 1).

With regards to declaration of enforceability, the court with which an appeal is lodged under Art. 43 or Art. 44 shall refuse or revoke a declaration of enforceability only on one of the grounds due to which a judgment shall not be recognised (Art. 45).

CMR and COTIFThe Convention does not prescribe grounds for challenging the enforceability of judgments. A judgment shall become enforceable in each of the other Contracting States, as soon as the formalities required in the country concerned have been complied with (Art. 31 para 3 CMR and Art. 12 para 1 COTIF). Therefore, in Croatia it may be challenged on the grounds stated in question 2.7 above.

Bilateral treatiesReasons for refusal of recognition and enforcement may be summed up as follows: (i) The judgment is contrary to ordre public of the country

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 treaties except with Belgium and France).

Some treaties (with Bulgaria, Czech Republic and Slovakia, Greece, Poland, North Macedonia, Romania, and Russia) prescribe that recognition and enforcement will be refused only if the said decision is reached before the judgment whose recog-nition and enforcement is sought.(iii) If there are pending proceedings initiated prior to the

judgment on the same matter in the country where recog-nition and enforcement is sought (Belgium, Bosnia and Herzegovina, France, North Macedonia, the Russian Federation and Slovenia) (the treaty with Turkey prescribes that proceedings only have to be pending).

(iv) If the court of the country where recognition and enforce-ment is sought has exclusive jurisdiction on the matter (Bosnia and Herzegovina, Bulgaria, North Macedonia, Poland, Slovenia and Turkey).

Treaties with Austria and Belgium prescribe that the decision which was reached in proceedings in which the defendant was in absentia and exclusively represented by an appointed representa-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

Hague Convention of 23 November 2007 The procedures for recognition and enforcement are governed by the law of the State addressed (Art. 23 para 1). Therefore, Croatian law applies.

If the State addressed is unable to recognise or enforce the decision in its entirety, it shall recognise or enforce any severable part of the decision which can be so recognised or enforced (Art. 21). The procedure for a motion for recognition and enforce-ment is prescribed in Art. 23 para 2–11. A State may declare, in accordance with Art. 63, that it will apply the procedure for recognition and enforcement set out in Art. 24.

There shall be no review of the merits of a decision (Art. 28).Proceedings for recognition and enforcement of a mainte-

nance arrangement shall be suspended if a challenge concerning the arrangement is pending before a competent authority of a Contracting State (Art. 30 para 6).

Lugano ConventionA judgment is recognised without any special procedure being required (Art. 33 para 1).

The motion for declaration of enforceability shall be submitted to the court or competent authority indicated in Annex II (Art. 39 para 1). The judgment will be declared enforceable after completion of the formalities in Art. 53 without any review under Art. 34 and 35 (Art. 41). The declaration of enforcea-bility shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served (Art. 42 para 2). Under no circumstances may the foreign judg-ment be reviewed as to its substance (Art. 45 para 2).

CMR and COTIFThe Conventions do not regulate a procedure for enforcement of judgments. A judgment shall become enforceable in each of the other Contracting States, as soon as the formalities required in the country concerned have been complied with (Art. 31 para 3 CMR and Art. 12 para 1 COTIF).

Bilateral treatiesNone of the treaties prescribe the procedure for recognition and enforcement. All specifically prescribe that the enforcement law procedure of the country where enforcement is sought applies, while some treaties (with Belgium, Bosnia and Herzegovina, France, North Macedonia, Slovenia, Turkey) prescribe that the procedure for recognition of the country where recognition is sought applies. Therefore, Croatian law applies.


Hague Convention of 1 March 1954 The Convention does not specifically prescribe grounds for refusal of enforcement. Enforcement of the order for costs and expenses might be challenged on the grounds that it does not satisfy the requirements prescribed in Art. 19 para 2 (see ques-tion 3.1 above).

Hague Convention of 19 October 1996 Recognition, declaration of enforceability or registration of measures may be refused in cases prescribed in Art. 23 para 2 and Art. 26 para 3.

Hague Convention of 23 November 2007 Recognition and enforcement of a decision or maintenance arrange-ment may be refused in cases prescribed in Art. 22 and Art. 30 para 4.


74 Croatia


Provisions of Other Countries in Certain Matters which previ-ously prescribed the general regime of recognition and enforce-ment of foreign judgments. PILA removed reciprocity as a requirement for recognition and enforcement, as well as certain requirements that were once prescribed in relation to foreign judgments in marital disputes, paternity and maternity disputes and personal status of Croatian citizens and foreign citizens.


Court taxes in recognition and enforcement proceedings are 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.

third country on the same matter and requirements for recogni-tion and enforcement of the said decision in the country where 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 requirements for recognition and enforcement.

4 Enforcement


According to EA, depending on the type (monetary or non-mon-etary claim) and the amount, a claim may be fulfilled through enforcement actions prescribed by EA on various objects of enforcement. The objects of enforcement according to EA are real estate, moveable assets, monetary claims, stocks, shares, securities and other material or property rights.

5 Other Matters


On 29 January 2019 PILA entered into force, substituting the Act Concerning the Resolution of Conflicts of Laws with the


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Macesic and Partners LLC

Anita Krizmanic is a Partner at Macesic & 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 corre-spondent 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, one of which is co-published by the World Bank and International Finance Corporation.

Macesic and Partners LLCPod Kastelom 451000 RijekaCroatia

Tel: +385 51 215 010Email: [email protected]: macesic.hr

Macesic and Partners LLC is one of the oldest business law-oriented law firms in the country, regularly assisting international clients and providing a full range of required services. The firm provides expert assistance in complex, cross-border matters serving clients across the country from two offices in Zagreb and Rijeka.The firm’s client base includes domestic and international banks, insur-ance companies, ship owners and corporations, often major international companies with high-profile and high-value matters, but also private clients who operate and have interests in the region.Macesic and Partners LLC is a part of several professional and expert organisations and associations and listed in all major professional directo-ries. It regularly acts as a local correspondent for numerous international law firms and is a Protection and Indemnity (P&I) Clubs correspondent in Croatia.

macesic.hr



Chapter 1376

Cyprus

Montanios & Montanios LLC Yiannis Papapetrou

Cyprus

Regulation (EC) No. 805/2004 creating a European Enforcement Order for uncon-tested claims, Regulation (EC) No. 1896/2006 (as amended) creating a European order for payment procedure and Regulation (EC) No. 861/2007 (as amended) estab-lishing a European Small Claims Procedure

All coun-tries within the EU (excluding Denmark)

Please see chapter 2

Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the “Hague Convention”)

All Member States of the EU (apart from Denmark), Mexico and Singapore


The Judgments of Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000) and the relevant bilat-eral treaty in rela-tion to each country

Countries with which Cyprus has concluded or is connected with an agreement for mutual recogni-tion and enforce-ment of judicial decisions, those being: Belarus; Bulgaria; China; Czech Republic; Egypt; Georgia; Greece; Hungary; Poland; Russia; Serbia; Slovakia; Slovenia; Syria; and Ukraine

Section 3

1 Country Finder





Regulation (EU) No. 1215/2012 on jurisdiction and the recogni-tion and enforce-ment of judg-ments in civil and commercial matters (recast) (the “Brussels I Regulation (recast)”)

All countries within the EU


Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commer-cial matters

All countries within the EU


Convention on jurisdiction and the recognition and enforcement of judgments in civil and commer-cial matters of 30 October 2007 (the “Lugano Convention”)

Switzerland, Norway and Iceland



77Montanios & Montanios LLC


provide, inter alia, for the recognition and enforcement of judgments given in the courts of the Contracting States. Under these, a judgment creditor may apply in Cyprus for the recognition and enforcement of the foreign judg-ment using the Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121 (I)/2000). Cyprus has concluded such bilateral treaties with Belarus, Bulgaria, China, Czech Republic, Egypt, Georgia, Greece, Hungary, Poland, Russia, Serbia, Slovakia, Slovenia, Syria and Ukraine.

(b) Enforcement under the Certain Judgments of Courts of Commonwealth Countries (Reciprocal Enforcement) Law, Cap. 10

The Certain Judgments of Courts of Commonwealth Countries (Reciprocal Enforcement) Law, Cap. 10, as amended, which is based on the English Foreign Judgments (Reciprocal Enforcement) Act 1933, applies only to judg-ments of superior courts of the United Kingdom. In a recent judgment of a first instance court, it was accepted that Cap. 10 could be used to recognise and enforce a judg-ment from a court of the British Virgin Islands which was accepted as forming part of an overseas territory of the United Kingdom (and as such has not acceded to the European Union (judgment dated 16 October 2015 in Application No 281/2015 [unreported])). Following the referendum in the UK for the country to leave the EU, this legislation may be more relevant in the future unless of course a specific arrangement is reached on the matter between the EU and the UK (possibly along similar lines to the Lugano Convention).

(c) Enforcement under common law If none of the special regimes above apply, it may be

possible to bring an action at common law or raise a coun-terclaim on the foreign judgment. If a foreign judgment is enforceable under the Brussels I Regulation (recast) or another statute, it may not be enforced by a common law action on the judgment.


In order for a foreign judgment to be enforced by a claim at common law, the judgment must be final and conclusive and be capable of being enforced by execution in the country of the original court. A judgment which is res judicata between the parties is final and conclusive, but a judgment which is liable to be varied or amended by the foreign court is not consid-ered final and conclusive. A judgment can be final and conclu-sive even if an appeal is pending before a higher court of the foreign country. In such a case, it is likely that the Cypriot court would set conditions for the purpose of safeguarding the right of appeal. However, where execution of a judgment is stayed for any period pending an appeal or for any other reason, no recognition and enforcement can be sought until the expiration of that period. A judgment issued by default of appearance can be considered final and conclusive even if the judgment debtor could apply to have it set aside.

Moreover, the judgment must be for a definite sum of money or for a debt. A sum is sufficiently certain for this purpose if it can be ascertained by a simple arithmetical process. The judg-ment could also be an order for costs. If the foreign judgment orders the judgment debtor to specifically perform something, such judgment is not enforceable although it may be res judicata. Likewise, if a foreign judgment is for a number of remedies, the judgment creditor may seek, if he wishes so, recognition and enforcement of part of it.

The Certain Judgments of Courts of Commonwealth Countries (Reciprocal Enforcement Law), Cap. 10

Judgments of superior courts of the United Kingdom

Section 3

Civil Procedure (Reciprocal Enforcement) Law, Cap. 7

New South Wales and Grenada

Section 3

Common law All countries to which none of the above specific laws/regulations apply

Section 2

2 General Regime


A foreign judgment can be recognised and enforced in Cyprus through different procedural mechanisms, depending mainly on the nationality of the court which gave the judgment. The main instruments are set out below:

2.1.1. Enforcement of EU JudgmentsIn brief, judgments from the courts of countries of the European Union (and judgments from Switzerland, Norway and Iceland) can be recognised and enforced under the different specific EU regulations on the matter, the main regulation now being the Brussels I Regulation (recast). Under the Brussels I Regulation (recast), a judgment given in an EU Member State (including Denmark) which is enforceable in that State is enforceable in Cyprus without any declaration of enforceability being required. The predecessor of Brussels I Regulation (recast), i.e. Regulation No. 44/2001, continues to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015.

Under Regulation 805/2004, a regime was established for European enforcement orders for claims which are uncon-tested by debtors. The European enforcement order is a certificate which enables judgments, court settlements and authentic instruments on uncontested claims to be recognised and enforced automatically in another Member State, without any intermediate proceedings. Regulation 805/2004 applies in civil and commercial matters. It does not, in particular, cover revenue, customs or administrative matters. It is applicable in all Member States with the exception of Denmark.

Although the majority of foreign judgments which are recog-nised and enforced in Cyprus are from other Member States of the European Union, details on the applicable regime are not analysed here as they are dealt with in the EU chapter in this guide.

2.1.2. Enforcement of non-EU Judgments (a) Enforcement of a Foreign Judgment using the Foreign

Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000)

Cyprus has entered into bilateral treaties with a number of countries on legal assistance on various matters which


78 Cyprus


issue on whether the foreign court had international juris-diction will be decided on the basis of the Cypriot conflict of laws rules;

(c) given by fraud; it is immaterial if the fraud was by the court or the judgment creditor;

(d) contrary to the public policy of Cyprus; it would be contrary to public policy for example to recognise a foreign judg-ment which conflicts with the prior decision of a Cypriot court in an action between the same parties; and

(e) given in proceedings which were opposed to the principles of natural justice; if a judgment is pronounced by a foreign court of competent jurisdiction, Cypriot courts would not investigate the propriety of the proceedings in the foreign court, unless they offend Cypriot views of substantial justice. Whether the foreign proceedings violate substan-tial justice in the view of the Cypriot court would depend on the nature of the proceedings under consideration. For example, a foreign judgment which is wrong on the merits is not impeachable on this ground nor if the foreign court admitted evidence which would be inadmissible before the Cypriot courts. The principles of natural justice would of course involve a right of the judgment debtor to be given notice of the foreign proceedings and that having been given this notice, the judgment debtor was given the opportunity of substantially presenting their case before the foreign court.

The judgment debtor will need to enter an appearance in the action and file a defence raising any of the above issues as a defence.

It should be noted that in case there are two competing foreign judgments by courts of competent jurisdiction which are final and conclusive, the earlier in time will prevail.


There are particular regulations of the European Union which apply to different subject matters, such as matrimonial and insol-vency matters. These include Regulation (EC) No 1346/2000 on insolvency proceedings, Regulation 2201/2003 on juris-diction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility and Regulation 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

Furthermore, in relation to matrimonial matters, Cyprus ratified the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction by Law 11(III)/1994 and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter the 1996 Child Protection Convention) by Law 24(III)/2004.

Cyprus is also a signatory to the following multilateral conventions relating to the recognition and enforcement of foreign judgments:(a) the Convention on the Recognition and Enforcement of

Foreign Judgments in Civil and Commercial Matters and Supplementary Protocol (Hague Convention) thereto; the Convention has no practical effect as Cyprus has not signed any Supplementary Agreement with any Contracting State;

(b) the Convention on the Recovery Abroad of Maintenance (Ratification);

(c) the European Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and

Further, the foreign judgment must have been issued by a court which had jurisdiction to give judgment.


See answer to question 2.2 above.


For a common law claim on a foreign judgment to be enter-tained, the Cypriot court must have jurisdiction over the judg-ment debtor. The writ of summons must be served upon the judgment debtor in Cyprus or leave must be obtained for service out of jurisdiction.


There is a difference between recognition and enforcement of judgments. A foreign judgment has no direct operation in Cyprus until this has been recognised. Once it is recognised, it has the same status as a Cypriot judgment and measures can be taken for its enforcement.

There are cases where the foreign judgment may be incapable of enforcement; for example, where the judgment dismisses a claim or counterclaim or is a declaratory judgment. In such cases, a judgment creditor need only seek its recognition. In certain cases, a judgment creditor may choose only to seek the recognition of the foreign judgment and refrain from taking any enforcement measures if, for example, the purpose of recog-nition is merely to defend a claim in Cyprus on the same or connected matter.


At common law, a foreign judgment may be enforced by bringing an action on the basis of the foreign judgment. The action commences by a writ of summons which must be served on the judgment debtor. The case proceeds like any other ordi-nary action against a defendant. However, the judgment cred-itor may then apply for summary judgment on the ground that there is no defence to the action. A summary judgment will be issued unless the judgment debtor can satisfy the court that there is an issue in dispute which needs to be tried. An example of an issue which may be raised by a judgment debtor opposing the application for summary judgment could be that the foreign judgment was obtained by fraud.


The only defence under the common law that would be open to the defendant in such an action would be that the foreign judg-ment was: (a) not final and conclusive (see question 2.2 above); (b) issued by a court which had no competent jurisdiction; the


79Montanios & Montanios LLC



There are no differences in the rules and procedure of recog-nition and enforcement between the various districts in the Republic of Cyprus.


The relevant limitation period for an action on a foreign judg-ment at common law would be, according to the Limitation Law of 2012 (Law 66(I)/2012), 15 years from the date when the judg-ment became final.

For any foreign judgments issued before 31 December 2015, time for the purposes of limitation starts running on 1 January 2016.



In order to be recognised and enforced, a foreign judgment must, for the purposes of the Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000), have been given by a court of a country with which the Republic of Cyprus has concluded a treaty of mutual recognition and enforcement of judgments and arbitration awards. As mentioned in question 2.1 above, such treaties have been entered into with Belarus (Rat. Law 172/1986), Bulgaria (Rat. Law 18/1984), China (Rat. Law 19/1995), Czech Republic (Rat. Law 68/1982), Egypt (Rat. Law 32/1992 and 14/1996), Georgia (Rat. Law 172/1986), Greece (Rat. Law 55/1984), Hungary (Rat. Law 7/1983), Poland (Rat. Law 10/1997), Russia (Rat. Law 172/1986), Serbia (Rat. Law 179/1986 and Law 34(ΙΙΙ)/2001), Slovakia (Rat. Law 68/1982), Slovenia (Rat. Law 179/1986), Syria (Rat. Law 160/1986, 13/1997) and Ukraine (Rat. Law 172/1986 and 8/2005).

Further, the judgment must be enforceable in the country in which it has been given. The word “judgment” includes, in this context, any enforceable interim or temporary order or decree. Further, either the judgment debtor/respondent or the judgment creditor/applicant must be resident in Cyprus for it to be possible to apply for the recognition and enforcement of a foreign judgment.

Under the Certain Judgments of Courts of Commonwealth Countries (Reciprocal Enforcement) Law, Cap. 10, as amended, which is based on the English Foreign Judgments (Reciprocal Enforcement) Act 1933 and which, so far, has been extended to apply only to judgments of superior courts of the United Kingdom, a judg-ment creditor who has obtained a judgment may apply to the district court in the district of Cyprus in which the judgment debtor or any of the judgment debtors resides or in which any property to which a judgment relates is situated for its recognition and enforcement. The judgment creditor may apply at any time within six years after the date of the judgment or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings. The judgment must be final and conclu-sive as between the parties and there must be payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty. The

(d) the European Convention on the Recognition and Enforcement of Certain International Aspects of Bankruptcy.

Foreign arbitral awards can be enforced in Cyprus by virtue of the provisions stated in the International Commercial Arbitration Law 101/1987 and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 which was ratified by Law 84/1979.


(a) A foreign judgment will not be recognised and enforced if there is a conflicting Cypriot judgment on the same issue between the same parties on the basis that this will be against the principle of res judicata and therefore contrary to the public policy of Cyprus.

(b) A foreign judgment may be recognised and enforced in Cyprus even if there are proceedings pending between the parties before a Cypriot court. The judgment creditor may wish to raise the foreign judgment as a defence to the ongoing proceedings before the Cypriot court, provided the foreign judgment is final conclusive on the merits in favour of the defendant/judgment creditor. Depending on the circumstances, the matter may be raised as either a cause of action estoppel or an issue estoppel. It is imma-terial that the foreign proceedings upon which the foreign judgment was issued were in the form of an action in personam, but the Cypriot proceedings are in the form of an admiralty claim in rem. Both proceedings are considered as between the same parties from the moment the Admiralty Court is seized with jurisdiction.


If a foreign judgment is in conflict with Cypriot law or a prior judgment on the same or a similar issue but between different parties, recognition and enforcement could potentially be denied for reasons of public policy. Whether public policy reasons will be applied or not will, of course, depend on the particular circumstances of a case. It should be noted, however, that the public policy defence is to operate only in exceptional circum-stances. A mere difference between the substantive law of the foreign court and that of Cyprus would not suffice to deny the recognition and enforcement of the foreign judgment.


If the foreign court had jurisdiction to issue a judgment and all other requirements are met, such a foreign judgment could be recognised and enforced in Cyprus. The foreign judgment cannot be re-examined by the Cypriot courts on the merits provided of course that the foreign court had jurisdiction to try the case on the basis of the Cypriot private international law rules. This would even be the case if it appeared that the foreign court made an obvious mistake on Cypriot law which was evident on the face of the judgment.


80 Cyprus


proceedings. Furthermore, it has been held by the Cypriot courts that the court has the inherent power to consider if a judgment satisfies the requirements for recognition and enforcement even if this was not raised by the judgment debtor in their opposition.

4 Enforcement


Once a foreign judgment is recognised, all methods for execu-tion would be available as if it was a judgment issued by a Cypriot court. The most common methods of execution of a foreign judgment would be the following: 1. by seizure and sale of movable property; 2. by sale of or making the judgment a charge on immovable

property; 3. by sequestration of immovable property; 4. by attachment of property; and5. by examining the judgment debtor in respect of his finan-

cial situation and issuing an order to pay the judgment debt in monthly instalments.

Although strictly speaking not an enforcement method, if the judgment debtor is unable to pay their debt, the judgment cred-itor may wish to initiate liquidation or bankruptcy proceedings.

It should be noted that it has been held by the Cypriot courts that the enforcement of a foreign judgment in Cyprus is governed by Cypriot law as the lex fori and not by the law of the country of origin of the foreign judgment. Therefore, if the foreign judgment provides for a method of enforcement of the judgment, this would not be followed if such a method is not recognised under Cypriot law.

5 Other Matters


In a recent decision of the District Court of Larnaca (Decision dated 19 September 2017 in Application No 3/2016), the judge set aside a previous order of the Court recognising for enforcement purposes, in the context of Brussels I Regulation, a judgment of the English High Court on the basis that its recognition would be contrary to the public policy of Cyprus. The Court held that the Plaintiffs in the English action had no right to sue the defendant as they had assigned their rights under the relevant contracts to another party. Further, the Court held that the recognition order should also be set aside for public policy reasons due to the fact that the Cypriot courts had exclusive jurisdiction on the matter as the issue concerned immovable property in Cyprus.


It is important that care is taken to present the necessary docu-mentation to the court and, where this is required (for example, in a number of bilateral treaties and where enforcement of arbitral awards is sought under the New York Arbitration Convention), that correctly certified documents are produced, as failure to do so can lead to the dismissal by the court of an application for recognition and enforcement.

application to recognise and enforce the judgment under this Law must be accompanied by an affidavit which should exhibit a certi-fied copy of the judgment together with a certified Greek translation.

Lastly, registration of judgments may also be affected under the provisions of the Civil Procedure (Reciprocal Enforcement) Law, Cap. 7 which has been extended only to New South Wales and Grenada.


As mentioned in question 2.3 above, only once a foreign judg-ment is put on the same footing as a Cypriot judgment can meas-ures be taken for its enforcement. If the judgment creditor so wishes, an application under the Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000) can be made only for the recognition of the judg-ment without the need to request its simultaneous enforcement.


For recognition and enforcement under the Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000), an application by summons (that is with notice to the judgment debtor) accompanied by an affidavit must be filed at the relevant court of the district where the judgment debtor resides or, in case the judgment debtor resides out of Cyprus, at the court of the district where the judgment creditor resides. Each bilat-eral treaty sets out the different documentation that needs to accom-pany the application. For example, for judgments from the Russian courts, the application should be accompanied by (a) the original or certified copies of the judgment together with a certificate to the effect that it is final and enforceable unless this is evidence from the judgment itself, (b) a document certifying that the party against whom the judgment was given had been duly notified and in suffi-cient time, and (c) a certified translation of all documentation.

The application will be fixed for hearing not later than four weeks from the date of its filing and the judgment debtor must be served with a copy of the application and supporting affidavit without delay. If the judgment debtor is not resident in Cyprus, no leave of the court to serve the application out of jurisdiction is required. If the judgment debtor wishes to oppose the application, a written opposition supported by an affidavit can be filed at least two days before the hearing date. In cases where in the proceedings of the foreign court there was no counterparty, the procedure for recog-nising and enforcing the foreign judgment commences with an ex parte application (that is without notice) supported by an affidavit.


The judgment debtor can oppose the recognition and enforce-ment of the foreign judgment only on the grounds that the court does not have jurisdiction or that the foreign judgment has been satisfied or on the ground that some other particular prerequisite in the relevant bilateral treaty has not been satisfied. The facts in support of the opposition can be proved by affidavit or by oral evidence at any time during the recognition and enforcement


81


Montanios & Montanios LLC

Yiannis Papapetrou read law at the University of Warwick, England and was awarded an LL.B. Honours Degree in 2000. He was called to the Bar of England and Wales by the Honourable Society of Lincoln’s Inn in 2001 after completing the Bar Vocational Course with BPP Law School in London. In 2002, he obtained an LL.M. Degree in Maritime Law from King’s College, University of London.Yiannis joined Montanios & Montanios LLC in 2002 as a trainee advocate and was admitted to the Cyprus Bar in 2003. He became a partner of the firm in 2014 and practises in its Litigation and Dispute Resolution Department.Yiannis has experience of advising clients and correspondents on a wide range of contentious matters, particularly those with a multijurisdic-tional element and with particular emphasis on commercial, maritime and admiralty law. Yiannis also has experience in the area of interna-tional arbitration and corporate insolvency. Yiannis is also a licensed insolvency practitioner. Throughout his career, Yiannis has represented clients before the Supreme Court and the District Courts of Cyprus. Yiannis has acted as an expert on Cypriot law in a number of proceedings held in courts of other jurisdictions.

Montanios & Montanios LLCDiagoras House, 16 Pantelis Catelaris Street1097 NicosiaCyprus

Tel: +357 2266 0766Email: [email protected]: www.montanioslaw.com.cy

Montanios & Montanios (“M&M”) is one of the oldest law firms in Cyprus with an international practice. Over the last 65 years, it has acted for a wide spectrum of Cypriot and overseas clients, both corporate and private. It has been involved in a great number of local and international shipping, corpo-rate, finance and commercial transactions and has represented litigation clients before all Cypriot courts.The firm was founded in 1951 by the late Michael Montanios, a barris-ter-at-law of the Middle Temple (London), in the port city of Famagusta. In 1966, Eric Montanios joined the law practice of his father, which was then registered as a partnership under the name of “Montanios & Montanios – Advocates & Legal Consultants”. From 1951 to 15 August 1974, when the Turkish army of invasion occupied the city of Famagusta, the chambers of the firm were situated in Famagusta. As from 1 September 1974, the prac-tice was relocated to Limassol, and in 1979, the partners decided to set up the firm’s head chambers in the capital city of Nicosia, whilst continuing the operation of the Limassol office. In 2010, following the amendment of the Advocates Law, the M&M partnership was incorporated as an LLC.

www.montanioslaw.com.cy



Chapter 1482

Ecuador

Quevedo & Ponce María Belén Merchán

Alejandro Ponce Martínez

Ecuador

The General Organic Procedural Code 2015 (Supplement to the Official Gazette No. 506, May 22, 2015, in force since May 22, 2016)

Ecuador Section 2

2 General Regime


The General Organic Procedural Code (the procedural code) provides the rules on the recognition or homologation of foreign judgments in articles 102 to 106 and on the enforcement of such judgments in general provisions for enforcement of judicial deci-sions contained in articles 362 through 413. Recognition is a matter of special jurisdiction of each of the specialised cham-bers, according to the subject matter of the litigation, of the Provincial Court of the domicile of the person against whom the judgment will be enforced or, in lieu of domicile, of the place where assets of the defendant are located. Trial judges of the same province conduct the enforcement.


Any final judgment having the effect of res judicata under the laws of the foreign country may be recognised and enforced in Ecuador, provided the foreign judge was competent on the matter, the parties were personally served and the decision is not contrary to public order or public law of Ecuador. Foreign judg-ments against the Republic of Ecuador, in matters not related to commercial business, should be based on international treaties or, in lieu of them, on the laws of the country of origin supporting the validity and enforceability of such judgments.


Foreign judgments must fulfil the formal requirements to be considered authentic in the jurisdiction of origin, should be final

1 Country Finder





Havana Convention on International Private Law 1928 (Sánchez de Bustamante Code) (Ratified by Ecuador on April 15, 1933)

Brazil, Peru, Uruguay, Panama, Mexico, Ecuador, El Salvador, Guatemala, Nicaragua, Bolivia, Venezuela, Colombia, Honduras, Costa Rica, Chile, Argentina, Paraguay, Haiti, the Dominican Republic, the United States of America and Cuba

Section 3

Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 1979 (Montevideo Convention), rati-fied by Ecuador on May 5, 1982

Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela

Section 3

Mercado Comúnn del Sur (MERCOSUR) jurisdictional cooperation and assistance agree-ment of July 5, 2002

Argentina, Brazil, Paraguay, Uruguay, Bolivia, Chile and Ecuador

Section 3


83Quevedo & Ponce


b) Once the abovementioned liquidation is presented, the judge will issue the order of enforcement granting the defendant five working days to fulfil the obligation, which will be served to the debtor’s domicile or main seat of business.

c) The debtor may challenge the execution within a term of five working days granted in the order of enforce-ment, opposing the execution only through the defences permitted by the procedural code which had originated after the judgment became final and that imply the total or partial extinguishment of the obligation.

d) The debtor may propose a payment plan, which must be accepted by the plaintiff party and by interested third parties that may have joined for the enforcement proceedings.

e) If the obligation is not met, the judge will order the publication of the order of enforcement on the website of the judiciary to allow interested third parties having titles of enforcement to join in the proceedings and will order the seizure by the police of assets of the debtor appearing in the documents or certifications filed by the creditor or obtained by the judge; seizure implies that the assets will be delivered by the member of the police to a depositary appointed by the judge and, in the case of real property or other assets subject to public registra-tion, registered in the corresponding registry.

f ) Upon the seizure of assets, the judge will order their review with the involvement of an expert, which will be submitted with the technical evidence to support it and the signature of the judicial receiver in charge of the assets.

g) The judge will issue an order to notify the parties of the review, the contents of which will be discussed at the enforcement hearing, which will be called to take place within the maximum term of 15 working days and will be attended by the evaluation expert in order for him to explain the findings of the review.

h) At such enforcement hearing, the judge will rule on all of the aspects concerning the enforcement, including the challenges to the order of enforcement, the proposals for payment, the objections to the review, the identification of the assets that will be the object of public sale, and the right of third parties to participate in the enforcement proceedings in order to obtain the payment of their obligations, as well as on proposals that may be made by prospective buyers of the assets, provided the prices offered are higher than the amount owed by the debtor; this hearing may be rescheduled once in case one of the parties does not attend.

i) If the execution continues, the judge will set a date and time for the electronic auction for the public sale of the assets that were seized and chosen to be sold; a judicial order will be published on the website of the judiciary together with the details and images of the assets or their value.

j) The auction will take place on a date determined by the judge in a decree issued at least 20 working days before the action date that will be posted on the web platform of the judiciary.

k) The offers in the auction will be submitted through the abovementioned platform on the day determined by the judge at any time from hour zero to hour 24; the bidders should deposit 10% of the bid in a bank account or 15% in case of bids offering delayed payments.

l) A new hearing will be called by the judge to qualify the bids and decide on them, with the presence of the bidders.

m) If no bids were filed another auction may be called.

with the effect of res judicata in the jurisdiction of origin, must be translated into Spanish by a registered translator approved by the Council of the Judiciary of Ecuador, and must bear evidence that the defendant was served and was allowed to defend.


No special requirement regarding connection exists. However, no foreign judgments concerning a divorce may be recognised and enforced in Ecuador if the marriage was celebrated in Ecuador and one of the spouses is an Ecuadorian citizen.


Yes. Recognition implies homologation of the decision to the same condition of a domestic judgment. Enforcement implies the judicial execution and fulfilment of the obligations and effects of the judgment. They are conducted in two different procedures; each one with different rules.


I. The procedure to recognise a foreign judgment is subject to the following steps: a) In order to obtain recognition, a formal request before

the competent chamber of the Provincial Court should be filed by the interested party, attaching to it an authentic text, translated, if applicable, into Spanish, of the foreign decision with the certificate of the competent judicial officer of the country of origin expressing that it is final, has the effect of res judicata and was rendered in a proceeding where the defendant was legally served and was allowed to defend himself. Alternatively, roga-tory letters from the competent court of the country of origin fulfilling similar requirements may be presented with the request for recognition.

b) The judges, after confirming that the abovementioned formal requirements have been fulfilled, will order to serve to the eventual defendant in the specific place determined by the eventual plaintiff, granting him a term of five working days to oppose or not to oppose the recognition.

c) The judges must rule within a 30-day term counted from the date on which the concerned person was summoned. If a challenge or opposition is filed, the court is entitled to decide directly, after serving such opposition to the eventual plaintiff, or to call for a hearing, during which the decision will be rendered.

II. The procedure for the enforcement of a foreign judgment, once it is recognised, is the same procedure established for the enforcement or execution of any other document qual-ified and considered as the title of enforcement, including a domestic final judgment, and has very extensive regu-lations according to the nature of the obligations to be fulfilled. The main steps are as follows:a) The request for enforcement should be presented

before a competent trial judge of the domicile of the defendant who will conduct the enforcement and will initially appoint an expert to liquidate the amount owed comprising the capital, interest and costs.


84 Ecuador


Court of Pichincha refused to recognise a foreign award that was in conflict with a prior judgment rendered by an Ecuadorian court under the theory that the purpose of the recognition was to avoid the enforcement of the local judgment.

If the local courts decide to apply generally accepted princi-ples of law, also incorporated in the procedural code, or if a liti-gation is brought in Ecuador after a final judgment was entered abroad, on the same subject matter between the same parties, the local court would have to accept the defence of res judicata.


Local courts refuse to recognise foreign judgments contrary to Ecuadorian public order or Ecuadorian public law. It does not pertain to public order or public law to apply a prior court deci-sion, unless there are three prior Supreme Court decisions on cassation appeal rendered before October 20, 2008, or three decisions of any of the chambers of the National Court that have been declared by the whole National Court as binding prece-dent for the future, or if there is a decision of the Constitutional Court declaring as binding a decision on constitutional issues.


Although there are no known decisions on the matter from a Provincial Courts on the matter, the foreign judgment applying Ecuadorian law will be recognised and therefore enforced if the foreign judgment does not contravene public order or public law of Ecuador.


Ecuador is not a federal state and therefore the same rules and procedures are applied in its different provinces. However, in concrete cases, the interpretations of the laws may vary.


Since a final judgment is a title for enforcement, there is no applicable statute of limitations for the recognition and enforce-ment of foreign judgments.



1. Havana Convention on Private International Law (Sánchez de Bustamante Code). Judgments rendered

n) Once the decision on the auction is final and the best bidder pays, the property will be transferred to him and the creditor or creditors will be paid.


A challenge to the recognition of a foreign judgment must be filed within five working days after the request for recognition has been served to the eventual defendant in the recognition or homologation proceedings.

A challenge or opposition to the recognition may be based either on the lack of compliance of the formal requirements of the procedural code or on the violation of public order or the public law of Ecuador contained in the judgment.

In the enforcement proceedings, the debtor may challenge the execution within a term of five working days after the service of the writ of execution. The only allowed reasons to oppose the enforcement proceedings are that the obligations claimed have already been extinguished or fulfilled, after the judgment, by any of the following means: payment either in cash or assets; settlement; remission; novation; confusion; offsetting; or loss or destruction of the physical object of the obligation.


Recognising foreign judgments relating to specific subject matters are subject to the same above-described rules.

Enforcement of such foreign judgments, once recognised or homologated, is conducted according to the nature of the obli-gation imposed. If the obligation consists of delivering a specific subject matter that is retained by the debtor or third parties, the judge will issue an order to deliver it to the creditor within five days and, unless a challenge is accepted, will order the police to deliver the subject matter of the claim to the person entitled by the judgment to receive it. If by any reason it is not possible to fulfil this order of enforcement, the judge will establish the compensa-tion amount to be paid to the person favoured by the judgment.

If the judgment provides that something specific should be done by the loser, the judge will enforce such decision granting a term for such performance, and if it is impossible to fulfil it, will establish the compensation to be paid; such amount will be established in a hearing called for this very purpose.

If what was ordered in the foreign judgment is to execute a certain document and the person having such duty does not sign it after being compelled by the judge, the document will be signed by the judge in place of the person that failed to do so.

If the judgment has ordered not to conduct acts that violate certain rights, the judge will issue an injunction and, if this is not fulfilled, will establish the amount of compensation payable by the debtor.


Since an obligation to obtain prior recognition of a foreign judg-ment before enforcing it was established in the Organic Law of the Judicial Power enacted on March 9, 2009, no decisions on these matters have come to public knowledge up to now. However in a recent decision the civil chamber of the Provincial


85Quevedo & Ponce


2. Under the Montevideo Convention, proceedings for recog-nition or enforcement of foreign judgments are governed by the law of the jurisdiction in which the decision is to be recognised or enforced.

3. According to the MERCOSUR agreement, proceedings, including the determination of the competent court to recognise or enforce foreign judgments, are governed by the law of the jurisdiction in which the decision is to be recognised or enforced.


Violation of the requirements under the three special regimes indicated above may be a basis to challenge the recognition of foreign judgments. If the challenge is dismissed, no objection may be made on that basis in the enforcement phase.

4 Enforcement


The enforcement proceedings have been described under ques-tion 2.6 at point II. If payment has not been obtained, bank-ruptcy proceedings may be brought.

5 Other Matters


There were no relevant legal developments related to the recog-nition and enforcement of foreign judgments in Ecuador in the last 12 months. According to available information, 41 cases on recognition of foreign judgments were brought in 2019.


Each case is different; however, the parties that look for recog-nition and enforcement of foreign judgments in Ecuador should be advised that the completely new procedural system entered into force in Ecuador on May 22, 2016 and is still being tested, and there are certain matters very seldom applied in Ecuador and one of the them is the enforcement of foreign judgments. Not only was the procedural system changed, but also most of the old, experienced and honest judges were dismissed and replaced by new ones, some of them with poor knowledge of complex aspects.

in one of the countries that is a member of this conven-tion and signatory to it may be enforced in another such country, as long as: a) they were rendered by a competent judge; b) the parties were duly notified to participate in the proceedings; c) they do not violate the public policy or public laws of the jurisdiction in which enforcement is sought; d) they should be enforceable in their jurisdic-tion of origin; e) they are duly translated into the language of the jurisdiction where execution is sought; and f ) they fulfil the authenticity requirements set out by the law of the jurisdiction where they have originated and of the country where enforcement is sought.

2. Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo Convention). Judgments rendered in any of the countries that are members of this convention are enforceable in other member countries if: a) they fulfil the formal requirements to be considered authentic in the jurisdiction of origin; b) they have been officially translated into the language of the jurisdiction where they are to be recognised or enforced; c) they have been legalised under the law of the jurisdiction where they are to be recognised or enforced; d) they have been rendered by a competent judge; e) they have been rendered in a proceeding in which the plaintiff was duly summoned or subpoenaed; f ) they have been rendered in a proceeding in which the parties had the opportunity to present their case; g) they are final or have become res judicata in the jurisdiction of origin; and h) they are not contrary to principles of public order of the jurisdiction where they are to be recognised or enforced.

3. Under the MERCOSUR jurisdictional cooperation and assistance agreement in order to enforce foreign judg-ments in countries different from the country of origin they must: a) fulfil the formal requirements to be consid-ered authentic in the jurisdiction of origin; b) have been officially translated into the language of the jurisdiction where they are to be recognised or enforced; c) have been rendered by a competent judge; d) have been rendered in a proceeding in which the plaintiff was duly summoned or subpoenaed, and had the opportunity to defend the case; e) be final or have become res judicata in the jurisdiction of origin; and f ) not be contrary to principles of public order of the jurisdiction where they are to be recognised or enforced.


In any one of the three specific regimes set out there is an explicit differentiation between recognition and enforcement.


1. Under the Sánchez de Bustamante Code, the interested party must present its request for recognition or enforce-ment before the competent state court. The opposing party and prosecuting attorney are to be heard within a term of 20 days, after which the court should declare its ruling on the case. If recognition is granted, its enforce-ment is carried out as a domestic judgment.


86

Alejandro Ponce Martínez, a senior partner of Quevedo & Ponce, where he has worked since 1963, is doctor of jurisprudence from the Catholic University of Ecuador and master of Comparative Jurisprudence from New York University. He has practised in all branches of the law, in most of the courts of Ecuador and in two international tribunals, as well as in arbitration both domestically and internationally. He has presided over an average of 10 arbitration cases per year since 1997. He has widely written law articles and law textbooks. He was Chief Legal Advisor to the President of Ecuador León Febres Cordero and Associate Judge of the Superior Court of Quito. He was a member of the Ecuadorian Group of the Permanent Court of Arbitration, ICSID Arbitrator and WIPO Arbitrator. He is a correspondent of UNCITRAL. He joined the International Bar Association (IBA) in 2009, being part of its Arbitration section.

Quevedo & PonceAv. 12 de Octubre N26-97 y Abraham Lincoln16th Floor, Edificio Torre 1492Quito, 170523Ecuador

Tel: +593 2 2986 570Email: [email protected]: www.quevedo-ponce.com

Quevedo & Ponce is a law firm that renders its services to individuals and corporate clients since its founding in 1941 by Dr. Antonio Quevedo, Esq. Our law firm has become known for maintaining its ethics and tradition throughout its history. We provide quality professional service pursuant to the highest standards of knowledge and ethics in four cities in Ecuador. Our professional prac-tices are aimed to defend our client, with total loyalty and subject to legal and moral principles. We have professional relationships with important law firms worldwide with which we have cooperated in complex litigations and arbitrations, in the protection of intellectual property and in interna-tional trade transactions. Our services include advice on the main subjects of the law particularly in civil, commercial, corporate, banking, insurance, labour, administrative, taxation, intellectual property and competition laws.

www.quevedo-ponce.com


Ecuador

María Belén Merchán, an associate of Quevedo & Ponce, where she has worked since 2007, is a lawyer from the Catholic University of Ecuador. She practises in civil, administrative, corporate and arbitration law. She also works as arbitration secretary at the Arbitration and Mediation Centre of the Commercial Chamber of Quito. She is a member of the International Chamber of Commerce and the Spanish Arbitration Club.

Quevedo & PonceAv. 12 de Octubre N26-97 y Abraham Lincoln16th Floor, Edificio Torre 1492Quito, 170523Ecuador

Tel: +593 2 2986 570Email: [email protected] URL: www.quevedo-ponce.com



Chapter 15 87

England & Wales

Covington & Burling LLP Shivani Sanghi

Louise Freeman

England & W

ales

Hague Convention on Choice of Court Agreements (Hague Convention).

All Member States of the EU and Mexico, Montenegro, and Singapore.

See Chapter 1 and question 5.1.

Statutory RegimesAdministration of Justice Act 1920 (“AJA”).

Many Caribbean countries/former British dominions including Bermuda, British Virgin Islands, Cayman Islands; and several African nations including Ghana, Kenya, Nigeria, Uganda, Tanzania, Zambia and Zimbabwe. Other prin-cipal coun-tries include Republic of Cyprus, Malta, New Zealand and Malaysia.

Section 3.

Foreign Judgments (Reciprocal Enforcement) Act 1933 (“FJA”).

Mainly coun-tries in the Common-wealth such as Australia, Canada (except Quebec), India, Guernsey, Jersey, Isle of Man, Israel, Pakistan, Suriname and Tonga.

Section 3.

1 Country Finder





EU Regime*EU Regulation 1215/2012 on juris-diction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Recast Regulation) applicable to legal proceedings insti-tuted on or after 10 January 2015.

All Member States of the EU (except Denmark).

See Chapter 2.

EU Regulation 44/2001 on jurisdic-tion and the recog-nition and enforce-ment of judgments in civil and commer-cial matters (Brussels Regulation) appli-cable to judg-ments given in legal proceedings insti-tuted before 10 January 2015.

All Member States of the EU.

See Chapter 2.

Convention on juris-diction and the enforcement of judg-ments in civil and commercial matters signed in Lugano on 30 October 2007 (Lugano Convention).

Iceland, Norway and Switzerland.

See Chapter 2.


88 England & Wales


and enforced at common law, it must be final, binding and conclusive. A foreign judgment is only considered final and binding where it would have precluded the unsuccessful party from bringing fresh proceedings in that foreign jurisdiction. If a foreign judgment is the subject of appeal in that jurisdic-tion, the English courts are likely to grant a stay on enforcement proceedings pending the outcome of that appeal.

The common law rules also require the judgment to be enforced to have been rendered by a court of competent juris-diction, which is taken to mean one of the following: a) the person against whom the judgment was given was, at

the time the proceedings were instituted, present in the foreign country;

b) the person against whom the judgment was given was claimant, or counterclaimed, in the proceedings in the foreign court;

c) the person against whom the judgment was given submitted to the jurisdiction of that court by voluntarily appearing in the proceedings (which will not include submitting argu-ments on the merits where under local law, a challenge to jurisdiction can only be brought in conjunction with such arguments on the merits); or

d) the person against whom the judgment was given had, before the commencement of the proceedings, agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country.

Only final judgments for payment of a definite sum of money (save for taxes, fines or penalties) can be enforced under common law. This means, for example, that injunctions, interim orders and other judgments obtained from foreign courts for specific performance, payment into court or a declaration/dismissal of a claim/counterclaim can be recognised but cannot be enforced under English common law.

The English court can sever parts of a foreign judgment for the purposes of enforcement proceedings, i.e. it can enforce the payment obligations set out in the foreign judgment, disre-garding any other parts of the foreign judgment which do not constitute an obligation to pay a specified sum of money. Therefore, the existence of other obligations in conjunction with those of a monetary payment does not necessarily exclude a foreign judgment from enforcement under the common law. However, enforcement of any part of a monetary payment obli-gation in a foreign judgment which has been calculated by multi-plying a compensatory sum is not permitted.


The courts of England and Wales have jurisdiction to decide on questions of enforcement at common law without any need to establish a degree of connection with England or Wales (CPR Practice Direction 3.1(10)). A court may, however, conclude that it is not the most convenient forum if there is no real connection to the jurisdiction.


Before a judgment can be enforced, it must first be recognised. The distinction is made for the reason that a judgment of a foreign court cannot operate outside of its own territorially circum-scribed jurisdiction without the medium of the English courts.

General RegimeEnglish common law regime.

Countries to which none of the above specific stat-utes/regula-tions apply including USA, China (including Hong Kong), Russia and Brazil.

Section 2.

* Please see Chapter 2 for further information on the EU recog-nition and enforcement regime. The EU Regime will apply in the UK until the end of 2020. Thereafter, the position is not yet known (see section 5.1 below).

2 General Regime


The recognition and enforcement of foreign judgments in England and Wales which fall outside the scope of the special EU and statutory regimes listed above are dealt with under English common law.

The procedure for enforcement of such foreign judgments is set out in Part 74 of the English Civil Procedure Rules (“CPR”).


In English law, a judgment is considered to be any judgment given by a court or tribunal, whatever it may be called. CPR 74.2(c) provides that a foreign “judgment” in the context of enforcement in England includes a decree, an order, a decision, a writ of execution or a writ of control, and a determination of costs by an officer of the court.

Similarly, the Lugano Convention (at Article 32), the Brussels Regulation (at Article 32) and the Brussels Recast Regulation (at Article 2(a)) all stipulate that “judgment” means any judgment given by a court or tribunal whatever a judgment may be called, including a decree, order, decision or writ of execution as well as the determination of costs or expenses. These instruments therefore do not preclude from their scope non-money judg-ments and interim orders, including injunctions.

The AJA (at section 12) provides that “judgment” means any judgment or order given or made by a court in any civil proceed-ings, whereby any sum of money is payable. The FJA has a similar definition at section 11, defining a judgment as a judgment or order given or made by a court in any civil or criminal proceed-ings for the payment of a sum of money in respect of compen-sation or damages to an injured party. Accordingly, under these two Acts, as well as at common law, non-money judgments and interim orders, including injunctions, are not enforceable.


As noted above, in order for a foreign judgment to be recognised




g) the dispute in question should be submitted to the deter-mination of the courts of another country;

h) the judgment imposes a fine or a penalty upon the judg-ment debtor; and

i) there exists a previous final and conclusive judgment of a competent foreign or English court with sufficient juris-diction that conflicts with the judgment that is being sought to be enforced.

These challenges can be made by the defendant in the proceed-ings issued for the recognition or enforcement of the judgment. These grounds can be relied upon in the evidence submitted by the judgment debtor resisting the claimant’s summary judg-ment application under CPR Part 24 or employed as defences to recognition and enforcement.


There are several specific regimes pertaining to enforcement of judgments on specific subject matters such as shipping, aviation, intellectual property, etc. These regimes are either incorporated into the national legal framework through the supra-national legislative authority of the EU (in the form of binding regula-tions enacted by the European Parliament or treaties to which the UK is a party), or are given effect through the enactment of national legislation. The Cross-Border Insolvency Regulations 2006 (SI 2006/1030), the Civil Aviation Act 1982, Carriage of Goods by Road Act 1965, Shipping Act 1995, etc. are such examples.


Under common law, the defendant is entitled to challenge recog-nition and enforcement of a judgment on the basis that a previous conflicting English judgment exists which has been conclusive in deciding the issues between the parties. The principle of res judicata would apply here, pursuant to which the matter already 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 parties at the time when one of the parties seeks recognition or enforcement of a foreign judgment on the same issue(s), the English court is likely to stay the English proceedings until the judgment creditor’s claim for recognition and enforcement has been determined. The principle of res judicata is applied by the English court equally in cases where the issue has already been decided by a competent court in a foreign jurisdiction.


Generally, the basis for challenging enforcement under common law will not include an investigation of the merits of the claim/award being enforced. A foreign judgment may not therefore be challenged on the grounds that the foreign court was mani-festly wrong on the merits of the case or misapplied the relevant law. However, if the foreign court’s judgment conflicts with an

Therefore, all foreign judgments enforced by English courts are recognised, but not all recognised judgments are enforced. For example, a judgment in rem against an asset outside of England and Wales cannot be enforced for the reason that the assets fall outside of the jurisdiction of the English court; however, a party may seek recognition of that judgment for several reasons, such as defending claims within England or relying on the findings of the foreign judgment in other proceedings (res judicata).

Enforcement follows recognition and is required for the execution of the award, i.e. compelling a party to pay the sum of money ordered by the foreign court.


In order to recognise and enforce a judgment at common law, the party seeking enforcement (the claimant) must commence a new claim (by issuing a Claim Form) as one would for any other claim. The claimant must also file and serve “particulars of claim” on the judgment debtor, setting out the circumstances of the foreign judgment. Service may need to be effected outside the jurisdiction if the judgment debtor is not resident within the jurisdiction, which may require permission to serve the proceedings out of the jurisdiction (unless the court makes an order to dispense with service out of the jurisdiction in excep-tional circumstances), further complicating and/or delaying the process. Once service is effected, the process is then usually expedited by the claimant applying for summary judgment (under CPR Part 24), on grounds that the judgment debtor has no real prospect of success as evidenced by the foreign judg-ment. The effect of applying for summary judgment is that the process of enforcing the foreign judgment is expedited and simplified.

Note, however, the issues highlighted below at question 2.7, point d) in relation to the enforcement of foreign judgments given in default and against defendants that have not expressly submitted to the jurisdiction of the foreign court, which may affect the amenability of the enforcement action to summary judgment.


Recognition and enforcement under the common law regime may be challenged by the defendant on the following grounds:a) the foreign judgment is not final and conclusive. A final

judgment is one that is final in the court in which the judg-ment was made and may not be re-adjudicated by the same court;

b) the foreign court did not have jurisdiction over the parties. A foreign judgment is only enforceable if the foreign court had jurisdiction according to English principles of private international law. It is not sufficient if the foreign court had jurisdiction according to its own legal rules;

c) the judgment is contrary to the public policy of England;d) the foreign judgment offends the principles of natural

justice or substantial justice enshrined in the English legal system; for example, if the defendant was not given due notice of the original proceedings (with the result that judgment was obtained in default) or was not given a fair opportunity to be heard;

e) the judgment was fraudulently obtained;f ) recognition of the foreign judgment would result in the

contravention of the Human Rights Act 1998;


90 England & Wales


service will not render the foreign judgment unenforceable. The defendant would have to show that it was not made aware of the proceedings as opposed to being formally served in time in order to succeed on this defence.

In order for the foreign judgment to be registered, the AJA and FJA require that the foreign court should have had jurisdic-tion over the parties and the relevant issues in dispute according to English law principles. It is not sufficient that the foreign court had jurisdiction according to its own rules.

Under the AJA, the foreign judgment must be registered within one year from the date of the final judgment sought to be enforced, although the English court retains the discretion to accept registrations after the lapse of the stipulated period.

Under the FJA, foreign judgments must be registered within six years from the date of the final judgment sought to be enforced. If there have been appeal proceedings, time runs from the date of the last judgment.


The AJA and FJA require foreign judgments to be registered in England before they can be enforced.

As stated above, under the AJA, the English court retains a discretionary power to register foreign judgments that it finds just and convenient to enforce.

Under the powers specified in the FJA, the court must register judgments that fulfil certain criteria, such as the judgment being for a specified sum of money and the court that granted the judgment having had jurisdiction over the parties and issues, in accordance with its own legal system and rules, as well as in accordance with English law principles.

Once a foreign judgment has been registered in England, that judg-ment, as from the date of registration, has the same force and effect as an English judgment and enforcement proceedings can be brought in respect of it as if it was a judgment originally obtained in England. The methods of enforcement described at question 4.1 below there-fore become available to the judgment creditor upon registration.


Under the AJA and FJA, the application for registration must be made at the High Court and may be made without notice to the judgment debtor. The judgment creditor must file an authenti-cated copy of the judgment of which recognition and enforcement is sought, an English translation (if necessary) of the judgment (which must be certified by a notary public) and a witness statement in support of the application in the form set out in CPR Part 74.4.

The application for registration and written witness evidence must specify the grounds for enforcement, the amount in respect of which the foreign judgment remains unsatisfied, and the amount of interest claimed. In the case of registration under the FJA, the written evidence must also specify that the judgment is a money judgment and confirm that it can be enforced by execution in the state of origin.

Where the application for enforcement is challenged on the grounds set out in question 3.4 below, the foreign court may be required to provide a declaration of enforceability upon the consideration of the merits of the opposition to the application. An application for the declaration of enforceability must be made under CPR Part 23 using Form N244.

existing English law or if the foreign judgment is irreconcilable with an English judgment on the same issues, then the court may refuse to recognise the foreign judgment on grounds that its recognition and enforcement would be contrary to public policy.


A judgment of a foreign court purporting to apply English law would be treated the same as any other foreign judgment. A foreign judgment is not open to challenge on the ground that it misapplies English law.


The United Kingdom does not constitute a legal union, as the laws of England and Wales differ from those of Scotland and Northern Ireland. Enforcement of foreign judgments in Scotland and Northern Ireland are subject to their domestic jurisdictional and procedural rules, which are not addressed here.

All Scottish and Northern Irish judgments, granting both monetary and non-monetary relief (including injunctive relief and declarations), are recognisable and enforceable in England and Wales under the Civil Jurisdiction and Judgments Act 1982. As such, there are no types of judgment excluded from recog-nition and enforcement if they have been granted by courts of Scotland and Northern Ireland, as long as they are final in the court that granted the judgment in question and there are no outstanding appeals.


Pursuant to section 24(1) of the Limitation Act 1980, the limita-tion period to commence a claim to enforce a foreign judgment at common law is six years from the date of the foreign judgment sought to be recognised and enforced.



All judgments for the payment of a sum of money obtained from the ‘superior’ courts of Commonwealth countries covered by the AJA can be registered in England if, in all the circumstances of the case, the English court in its discretion finds it just and convenient that the judgment should be enforced in England.

The FJA (like the common law regime) only covers final and conclusive judgments for payment of a sum of money (other than penalties and taxes).

Failure to serve proceedings on the defendant in order to enable it to defend the action is a ground on which recognition and enforcement of the foreign judgment may be refused under the AJA and FJA. However, a mere procedural irregularity in




ascertain the judgment debtor’s assets in order to facilitate payment of judgment debts.

d) Third-party debt order – This allows the judgment cred-itor to collect on the debts owed to the judgment debtor. Note: this order cannot be made against future or foreign debts.

e) Writ of control or warrant of control – This allows the judg-ment creditor to take possession of the judgment debtor’s goods to sell at auction or trade in satisfaction of the debt.

f ) Attachment of earnings order – The judgment creditor may seek an order compelling an employer to deduct from an employee’s salary (who is the judgment debtor) the sums necessary to pay the judgment creditor.

Pursuant to section 25 of the Civil Jurisdiction and Judgments Act 1982, the English court can also grant provisional/interim measures such as freezing injunctions in support of enforce-ment of foreign judgments pending enforcement proceedings in England. Such provisional measures are ordinarily granted only in circumstances where it would be expedient to do so and there is a sufficient jurisdictional link to England; for example, if the assets are located in England or the defendant resides in England.

Pursuant to CPR 74.9(1), if the defendant has made an application to set aside an order registering a foreign judgment, no steps can be taken to enforce the judgment until the application has been decided.

5 Other Matters


The UK left the EU on 31 January 2020 on the terms of the Withdrawal Agreement.

Under the terms of the Withdrawal Agreement, the Brussels Recast Regulation continues to apply to legal proceedings commenced before the end of the transition period (which is currently scheduled to end on 31 December 2020). Pursuant to Article 67(1) of the Withdrawal Agreement, the Brussels Recast Regulation also applies to related proceedings that are commenced after the conclusion of the transition period; for example, those that arise from the same cause of action, or involve the same parties.

The UK government hopes to conclude a new civil jurisdic-tion and judgments regime with the EU before the end of the transition period. In the case of no agreement on civil jurisdic-tion and judgments being concluded by the end of the transi-tion period, or indeed in the event of a no-deal Brexit, at that point, there would be no agreed EU framework for ongoing civil judicial cooperation between the UK and EU countries, as the Brussels Recast Regulation would no longer apply to the UK.

Similarly, the Lugano Convention and the Hague Convention on Choice of Court Agreements are to be applied by English courts until the end of the transition period. Thereafter, they will cease to apply, unless other arrangements are put in place.

The UK government has indicated that, to address these risks, the UK intends to accede to both the Lugano Convention and the Hague Convention on Choice of Court Agreements in its own right at the end of the transition period.

In relation to the Lugano Convention, Switzerland, Iceland and Norway have issued statements that they will support a request for accession from the UK. The UK will need to obtain the support of those countries and also the EU and Denmark to accede to the Lugano Convention.

In relation to the Hague Convention, the UK Government intends to deposit an instrument of accession before the end of the transition period. See Chapter 1 for further details about the relevance of this Convention in the context of Brexit.

Once an order granting permission to register the foreign judgment has been granted by the English court, the order must be served on the judgment debtor by delivering it personally, by any of the methods of service permitted under the Companies Act 2006, or as directed by the court. Permission to serve the registration out of the jurisdiction is not required.


The registration order which registers the judgment will specify the right of the judgment debtor to apply to have the registration set aside, the period within which such an application or appeal may be made and that no measures of enforcement will be taken before the end of that period, other than measures ordered by the court to preserve the property of the judgment debtor.

Under the AJA and FJA, upon receipt of a registration order, the judgment debtor can challenge the registration of the foreign judgment on the following grounds:a) the court granting the judgment acted without jurisdic-

tion. The foreign court must have jurisdiction according to English law principles;

b) the defendant was not served with proceedings in accord-ance with the rules of the foreign court and did not appear in the proceedings;

c) the judgment was obtained fraudulently;d) the enforcement of the judgment would be contrary to

public policy;e) the judgment imposes a fine or a penalty on the defendant;f ) the judgment is not final and conclusive. The existence of

a pending appeal can either defeat the enforcement action or, more likely, lead to a stay of the enforcement action pending determination of the appeal;

g) the judgment has been wholly enforced in the jurisdiction of the foreign court; and

h) there exists a previous final and conclusive judgment of a compe-tent foreign or English court with sufficient jurisdiction that conflicts with the judgment that is being sought to be enforced.

The application to challenge registration must be made within the time specified in the registration order. The court may extend that period.

4 Enforcement


Once a judgment is recognised/registered, a judgment creditor has available to it the same methods and options to enforce that judgment or award against assets within England as it would if the original judg-ment had been made in England. Under the AJA and FJA, enforce-ment proceedings cannot commence until the registration order has been served on the judgment debtor and the specified time limit for the judgment debtor to challenge the registration has expired.

Potential methods of enforcement available to judgment cred-itors include but are not limited to:a) Charging order – Such an order would confer upon the judg-

ment creditor an interest over the property (land, goods, secu-rities, etc.) of the judgment debtor within the jurisdiction.

b) Order for Sale – An order to sell the assets of the judgment debtor subject to a Charging Order.

c) Receivership order – This allows for the appointment of a court-appointed receiver who would help gather and


92 England & Wales


in fact, submit to the jurisdiction of that court. This is because, under English law, there is no concept of implied submission to jurisdiction in personam, which means that the defendant must have expressly submitted to the jurisdiction of the foreign court in order for a judgment in personam to be enforced by an English court.

English law recognises sovereign immunity as a valid defence to the enforcement of a foreign judgment against a State. This is because proceedings commenced in England by a judgment creditor for the purpose of enforcing a foreign judgment against a State do not qualify as “proceedings relating to a commercial trans-action for the purposes of s.3(1) of the State Immunity Act 1978”. The UK Supreme Court decision in NML Capital Ltd v Republic of Argentina ([2011] UKSC 31) confirmed that a State is able to raise sovereign immunity as a defence in respect of enforcement proceedings of foreign judgments and awards, even if the under-lying proceedings relate to commercial transactions, unless the State has expressly waived sovereign immunity as a defence to enforcement (as it had on the facts of that case). In light of this interpretation of the State Immunity Act 1978, enforcing judgments against a State which has not expressly waived immu-nity in relation to enforcement proceedings is made particu-larly difficult, as there is little ammunition available to the judg-ment creditor seeking to defeat a sovereign immunity defence. Furthermore, even if a judgment creditor is able to enforce a judgment against the State, there are restrictions on the type of assets available for enforcement.

While the UK’s departure from the EU will inevitably result in some changes to the framework for recognition and enforce-ment of judgments, we anticipate that the English courts will continue to recognise and apply clearly drafted jurisdiction clauses, and that judgments of the English courts will continue to be enforced in Member States (and vice versa), albeit perhaps with additional procedural steps to overcome.


Owing to the variety of regimes discussed above, it is particu-larly important for clients seeking to enforce a foreign judg-ment in England to consider first which of the many regimes in England would apply, in order to determine the procedural route to be taken to achieve enforcement.

It is important to note that when determining whether the foreign court had competent jurisdiction, the English courts will make this determination according to the rules of English private international law. The fact that the foreign court had jurisdiction according to its own law is not determinative.

There is a particular risk in enforcing default judgments (i.e. a judgment in which the defendant has not appeared) because they inevitably raise the question of whether the foreign court had jurisdiction in the first place and whether the parties did,


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Covington & Burling LLP

Louise Freeman focuses on 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 super person to work with”, Ms. Freeman helps clients to navigate challenging situations in a range of industries, including financial markets, technology and life sciences. 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.



Covington & Burling LLP (Covington) is a pre-eminent international law firm with more than 1,000 attorneys and advisors and with offices in Beijing, Brussels, Dubai, Frankfurt, Johannesburg, London, Los Angeles, New York, Palo Alto, San Francisco, Washington, Shanghai, and Seoul. In an increas-ingly regulated world, we have an exceptional ability to navigate clients through their most complex business problems, deals, and disputes.

www.cov.com

Shivani Sanghi is a dual-qualified lawyer: a Solicitor-Advocate in England and Wales; and an Advocate in India. Drawing on her extensive expe-rience 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.





Chapter 1694

France

Archipel Michaël Schlesinger

Jacques-Alexandre Genet

France

Bilateral conven-tions on mutual judicial assistance.

Algeria, Argentina, Benin, Bosnia-Herzegovina, Brazil, Burkina Faso, Cameroon, Central African Republic, Chad, China, Congo (Brazzaville), Djibouti, Egypt, Gabon, Ivory Coast, Laos, Macedonia, Madagascar, Mali, Mauritania, Mongolia, Montenegro, Morocco, Niger, Senegal, Serbia, Togo, Tunisia, United Arab Emirates, Uruguay, and Vietnam.

Section 3.

2 General Regime


Subject to special regimes set out by EU Regulations and bilat-eral or multilateral conventions, the legal framework under which a foreign judgment may be recognised and enforced in France is the French Code of civil procedure and the French Code of civil enforcement procedures, supplemented by the relevant case law regarding the numerous matters in which the codes remain silent. In a civil law jurisdiction like France, case law, whilst not being formally binding, is highly persuasive on lower courts.

1 Country Finder





French Code of civil procedure, French Code of civil enforcement procedures and corresponding case law.

French Code of civil procedure, French Code of civil enforcement procedures and corresponding case law.

Section 2.

Multilateral conventions.

State parties to multilat-eral 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 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.

Section 2.


95Archipel


secure a formal acknowledgment of its rights. For instance, a party can request recognition: to prevent a claim already judged in a foreign court from being made in France; or, on the contrary, to support a new claim made in France on the basis of the legal situation created by a foreign judgment.

Enforcement carries greater effect in that it allows a party to take coercive steps against the debtor on the French terri-tory. The foreign judgment acquires the same legal force and effects as a French judgment, providing full access to the avail-able enforcement measures under French law.

In practice, creditors seeking to recover a claim in France (other than by setting it off with a debt towards the opposing party) will seek an enforcement order (named an exequatur).


To obtain an enforcement order, the judgment creditor must summon the opposing party before a court of first instance (tribunal de grande instance). The request may be brought before the court of the opposing party’s domicile (art. 42 of the Code of civil procedure) or the court of the place where the enforcement is contemplated. The ruling will be made by a single judge (art. R. 212–8 of the Code for judicial organisation) following the exchange of written submis-sions and a hearing. The procedure will typically take six months to a year. Parties must be represented by a lawyer registered with the local bar association. If the main counsel is not registered with the appropriate court of first instance, the latter normally associates with a local lawyer. The requesting party must provide a copy of the foreign judgment together with a translation if the judgment is not issued in French. A sworn translation is not required unless the translation provided by the requesting party is disputed.

The enforcement decision may be appealed within one month of being notified by one party to the other (or three months for parties domiciled abroad). Usually, service is made by the prevailing party.

Service is carried out by bailiffs (huissiers de justice) when the recipient is domiciled in France. When the recipient is domi-ciled abroad, unless provided otherwise by special conven-tions on international service, a special procedure applies. The bailiff must hand over the act to be served to the public prose-cutor who, in turn, will transfer it through the Ministry of Justice and the Ministry of Foreign Affairs to the relevant authority in 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.


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.(ii) The judgment is incompatible with French international

public policy. Under international public policy, French courts exercise

more restraint, and show greater deference to foreign courts than under domestic public policy. Examples of international public policy requirements are: proper service to the defendant; reasonable time afforded to the parties during the foreign proceedings; equality of arms in the course of the proceedings; and independence and impartiality of the foreign court.

The court also looks at whether the effects of the foreign judg-ment breach French international public policy. For example, French courts consider punitive damages to be compatible with French


For the purposes of EU Regulations, ‘judgment’ means any judg-ment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. This includes provisional (including protective) measures ordered by a court or tribunal which, by virtue of these Regulations, has jurisdic-tion as to the substance of the matter. Hence, for instance, an ex parte worldwide freezing order issued abroad may be enforced in France after prior notice to the defendant.

In France, any decision whatsoever from a foreign judge may qualify as a ‘judgment’ capable of recognition and enforcement in France if it has consequences on individuals or legal entities, assets, rights or liabilities. This includes both contentious and non-contentious proceedings. Yet, it is not possible to obtain the recognition and enforcement of a judgment from a foreign country which recognises or enforces a judgment from another country. The later judgment shall be recognised and enforced directly in France irrespectively of the recognition and enforce-ment obtained abroad which is only persuasive.

Rulings from foreign non-judicial authorities (e.g. admin-istrative, religious, etc.) may also qualify as ‘judgment’ if they are issued by a public authority in charge of a matter which, in France, would fall under the jurisdiction of a court or tribunal.


To be recognised and enforced in France, a foreign decision must qualify as a court judgment and be enforceable in its jurisdic-tion of origin, according to the law of that jurisdiction. It does not need to be final, and foreign judgments that are enforce-able despite being subject to appeal can be recognised in France.

The foreign judgment must have been rendered by a court having jurisdiction over the dispute. A foreign court is deemed to have jurisdiction if it has tangible links with the dispute and if the matter does not fall under the exclusive jurisdiction of French courts.

Additional requirements such as compliance with due process, proper appearance in court, etc., are considered part of French public policy. As such, they are addressed in question 2.7 below.


French law does not require any specific connection to France to accept jurisdiction for recognition and enforcement of a foreign judgment.


French law distinguishes between the recognition and enforce-ment of judgments.

Recognition is intended to introduce the situation established by a foreign judgment into the French legal order. Most foreign judgments are recognised in France without the need for a court judgment. However, a party may wish to seek recognition to


96 France


separately. However, two related proceedings will then be pending before a French court, making it likely that the cases will be joined or that one case will be stayed pending the result of the other.


The existence of a conflicting local law or prior judgment between different parties is irrelevant, unless it would amount to an incompatibility with French international public policy rules.


French courts cannot review the merits of a foreign judgment, even if the foreign court incorrectly applied French law. There is therefore no particular approach to the recognition and enforce-ment of a foreign judgment that purports to apply French law.


Private international law rules apply to all French territory. This includes all territorial subdivisions, i.e. continental France, Overseas Departments and Regions (Départements et régions d’outre-mer), Overseas Provinces (Collectivités d’outre-mer) and New Caledonia. For historical reasons, special rules apply to the attachments in three districts in Eastern France: the départements of Bas-Rhin, Haut-Rhin and Moselle. This has no bearing on the enforcement proceedings themselves but will affect subsequent attachments.


There is no specific provision regarding the limitation period to enforce a foreign judgment. Since French courts can only enforce foreign judgments that are enforceable in their country of origin (see above question 2.2), the limitation period to recog-nise or enforce a foreign judgment could depend on the law appli-cable to the foreign judgment in its country of origin. However, the matter cannot be considered legally settled. French law provides for a 10-year limitation period applicable to all enforce-ment orders (i.e. including foreign judgments) rendered after 23 June 2006. Enforcement orders rendered before such date are time-barred after 30 years and in any event on 23 June 2016.



All bilateral conventions set out in question 1.1 above require

international public policy only if they are not disproportionate to the actual harm suffered. As a result, and as an example, damages for disgorgement of profit would most likely not be enforced in France. (iii) The judgment was procured by fraud.(iv) The judgment conflicts with another judgment (as to

which see question 2.10 below).A challenge is made during the enforcement proceedings before

the court of first instance (see above, question 2.6) or during any proceedings in which the foreign judgment is relied upon.

In some cases, it is appropriate to make a pre-emptive action to declare a foreign judgment unenforceable in France, at the request of any interested party. In commercial settings, this 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. They especially cannot review whether the foreign court applied the correct law (according to its own private international law rules) to the merits of the dispute.


Regulations for the recognition and enforcement of foreign judgments normally apply to all subject matters.

As an exception to the above:■ Foreign judgments rendered on public matters, i.e. through

which the government of a foreign country relies upon its sovereign prerogatives (typically tax and criminal judgments), cannot be recognised and enforced in France. However, severable parts of foreign criminal judgments ordering mone-tary compensation may be enforced in France.

■ Certain multilateral conventions to which France is a party, including those listed at question 1.1 above, contain specific subject matter provisions as to recogni-tion/enforcement. Except for the Hague Convention on Choice of Courts Agreements which is intended to apply to all commercial matters, these multilateral conventions complement recognition/enforcement regimes in very specific subject matters, such as international transport and nuclear liability.

■ The enforcement of arbitral awards falls under a separate regime and foreign judgments recognising arbitral awards cannot be enforced in France.


Recognition/enforcement may be denied in case of incompatibility with a prior conflicting judgment. Two judgments are deemed incompatible when their legal consequences exclude each other.

Any incompatibility between two foreign judgments is settled in accordance with the prior tempore rule, i.e. the judg-ment rendered first is deemed to prevail. An incompatibility between a foreign judgment (which has not yet been recognised in France) and a French judgment is always settled in favour of the French judgment, even if the French judgment is subsequent.

To prevent a French judgment from prevailing over a prior foreign judgment, a party can apply for recognition in France so as to be able to rely on the foreign judgment’s res judicata effect.

When local proceedings are pending in France, the recogni-tion/enforcement of the foreign judgment may still be sought


97Archipel


There is no review of the choice of law by the foreign court except for judgments rendered in Brazil, the Central African Republic, Chad, Djibouti, Gabon and Senegal, for which the French courts will apply French private international law rules to determine whether the foreign court applied the appropriate law.

For judgments rendered in Mongolia, the United Arab Emirates and Vietnam, recognition/enforcement cannot be refused on the ground that the foreign judge has applied its own private international rules if the chosen law leads to the same result on the merits as would have been the case by applying the law applicable under French conflict-of-law rules.

4 Enforcement


In France, a judgment creditor can carry out interim enforce-ment measures on the basis of a foreign judgment even before beginning recognition/enforcement court proceedings in France, provided that it can rely on the existence of a “threat to the recovery of its claim”. In practice, such a threat will result from 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 for a court order (unless the debtor is a foreign State, in which 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 attachment must then be notified to the debtor within eight days and is subject to judicial review.

Unless a court orders the attachments lifted, the assets will remain frozen for the duration of the enforcement procedure. If the court orders an enforcement of the foreign judgment, the frozen assets will be transferred to the creditor.

Attachments may be executed on movable or immovable assets, whether tangible or intangible, including the following specific categories: real estate; bank accounts; claims; dividends; royalties; vehicles of different types (cars, coaches, aircraft, boats, etc.); art; and movables whatsoever stored in bank safes, etc. The French Code of civil enforcement procedures provides specific attachment rules for each category.

French law provides for various options to judgment creditors to identify their debtor’s assets.

All bank accounts opened in France, and the names of their holders, are registered in the FICOBA database, which is acces-sible to creditors holding French enforceable titles. The request must be made through bailiffs.

The identity of land owners and a copy of the deeds of the sale/mortgage are registered at local land registries.

Garnishees/third-party debtors are compelled to disclose, upon service of an attachment order, all their financial commit-ments to the debtor and to provide supporting documentation. Failing to do so, garnishees/third-party debtors may be liable for damages.

In any case, a judgment creditor can proceed with the final attachment at the debtor’s premises or in the hands of a garnishee.

Attachments carried out in France are deemed to include all assets located in France – which include, in some circumstances, receivables against foreign branches (not subsidiaries) of French entities.

In case of sophisticated debtors, the judgment creditor may seek injunctive reliefs against third parties or the debtor himself and may even, in some circumstances, be authorised to carry out

a final and binding foreign judgment in the country of origin before being recognised and enforced in the country.

In addition, under all bilateral conventions (save the one between France and Mali that refers to the above-described French general regime), the foreign judgment must have been rendered by a court of competent jurisdiction according to French private international law rules. Bilateral conventions entered into with Egypt, Tunisia, the United Arab Emirates and Uruguay provide specific rules to determine whether the foreign court had jurisdiction over the dispute. Other conven-tions simply refer to the private international law rules of the signatory State in which enforcement is sought.

Bilateral conventions also require that the defendant must have been properly summoned.

Other conditions of substance are set out in question 3.4 below.


All bilateral conventions provide for the automatic recognition of foreign judgments, which has the same effects and limitations as described under the general regime at question 2.5 above.


Bilateral conventions provide simplified proceedings to obtain enforcement of a foreign judgment. The judgment creditor must summon the opposing party before the President of the Court of first instance (tribunal de grande instance) through fast-track proceedings (référé ). The procedure is primarily oral but, in practice, parties often also file written submissions. The proce-dure will normally take approximately six months.

Whilst parties do not necessarily need to be represented by locally registered lawyers, the assistance of a French-qualified lawyer is recommended.

The claimant must provide: (i) an original copy of the foreign judgment together with, if applicable, its simple translation (a sworn translation is required only in case the quality of the translation is challenged); (ii) a copy of the service of the deci-sion to the debtor; (iii) a certificate from the foreign court clerk stating that no appeal was filed; and (iv) if applicable, a copy of the initial summons if the decision was rendered in absentia.

The enforcement order may be appealed within one month of its service (or three months for parties domiciled abroad).


According to all bilateral conventions listed above – again with the exception of the one between France and Mali, which refers to the above-described general regime – enforcement may be refused if the conditions of the form set out in question 3.1 above are not fulfilled. In addition, recognition/enforcement will be denied if the judgment conflicts with French international public policy rules, or if a judgment is incompatible with another judgment rendered, or to be rendered, whether in France or elsewhere between the same parties, on the same grounds and for the same purpose.


98 France


which document was relevant for the purpose of identifying assets. While documents were being reviewed in the presence of the debtor’s counsel, the creditor did not have access to the documents and could only comment as to the opportunity of disclosing a given document described to him in general terms.

Similar rulings had already been obtained in aid of litigations to be carried out on the merits in France or abroad, but had never been applied in view of the enforcement of a foreign judg-ment. It is undoubtedly a landmark case which opens the door to a new approach of French courts in evidentiary matters. It should be noted that the case is currently pending before the French Cour de cassation.


Judgment creditors should bear in mind that enforcement proceedings in France are often slowed down by service processes. These can be extremely lengthy when it comes to service to debtors domiciled abroad (as they often are), and even more so when the debtor is a foreign State (see above at ques-tion 2.4). It is therefore important to closely monitor the service process with the relevant authorities, both to ensure its formal validity and to prevent undue delays.

In addition, all enforcement-related acts are performed by bailiffs (huissiers de justice). French bailiffs are hired by the parties themselves rather than appointed by the court. Because French bailiffs have jurisdiction over a limited geographical area, enforcement attempts in France can imply having to commission several bailiffs, depending on the location of the assets. Not all bailiffs may be familiar with enforcing foreign judgments.

Retaining the services of a competent local bailiff experi-enced in foreign judgment enforcement is a key part of enforcing in France and enhances the likelihood of effective collection.

searches with the assistance of a bailiff, in a similar way as under, e.g., the English Norwich Pharmacal or discovery orders.

French law also provides a variety of tools to enforce a foreign judgment against proxies. The creditor may, for instance, chal-lenge the fraudulent disposal of an asset by the debtor to escape payment obligations (action paulienne). He can also pierce the corporate veil by establishing the fictitious nature of the corpo-rate entity (simulation).

A debtor may challenge enforcement measures within one month of service (or three months if the debtor is domiciled abroad). The case must be filed before an enforcement judge ( juge de l’exécution) who generally rules within three to six months, after the parties have had the chance to file written briefs and appear in court. The judgment can be appealed.

5 Other Matters


On 23 May 2019, the Paris court of appeal confirmed a lower court order authorising a bailiff to carry out searches through the debtor’s electronic devices in a similar way as common-law search orders.

This order was rendered in the context of a large-scale fraud by sophisticated debtors who had notoriously concealed their assets in order to elude payment of their liabilities toward numerous creditors from various countries.

The judge granted ex parte authorisation to make a copy of all data existing on the debtor’s electronic devices in view of identifying assets held directly or indirectly by the debtors. The data remained in the hands of the bailiff (and was not disclosed to the creditor) pending challenges as the merits of the order. Once the order was confirmed, the judge reviewed, with the assistance of the bailiff, all data so gathered, and determined


99


Archipel

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 and University Paris 10 (Nanterre–La Défense). 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.

Archipel92, Rue Jouffroy d’Abbans75017 ParisFrance

Tel: +33 1 4054 5100Email: [email protected]: www.archipel-law.com

Archipel is a boutique law firm serving the cross-border needs of corpo-rate 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.com

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).

Archipel92, Rue Jouffroy d’Abbans75017 ParisFrance

Tel: +33 1 4054 5100Email: [email protected]: www.archipel-law.com


Chapter 17100

Germany

Herbert Smith Freehills LLP Sören Flecks

Catrice Gayer

Germ

any


CMR (continuing from above).

Kyrgyzstan, Latvia, Lebanon, Lithuania, Luxembourg, Malta, Mongolia, Netherlands, North Macedonia, Norway, Pakistan, Poland, Portugal, Republic of Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Tunisia, Turkey, Turkmenistan, Ukraine, United Kingdom of Great Britain and Northern Ireland, Uzbekistan.

Question 3.1.

Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 2 October 1973 (“Hague Convention on Maintenance Obligations”).

Countries signatory to the Convention.

Question 3.1.

Bilateral TreatiesConvention of 14 July 1960 between the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters.

United Kingdom.

1 Country Finder


In this chapter, the authors will mainly address commercial and civil matters. Further, Germany has entered into a number of multilateral and bilateral treaties. The treaties listed under section 1 are mentioned by way of example and the list is not exhaustive.




Multilateral ConventionsLugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 (“Lugano Convention”).

EU Member States and Norway, Iceland and Switzerland.

Question 3.1.

Hague Convention on Civil Procedure of 1 March 1954 (“Hague Convention on Civil Procedure”).

Countries signatory to the Convention.

Question 3.1.

Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (“CMR”).

Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Islamic Republic of Iran, Italy, Jordan, Kazakhstan.

Question 3.1.


101Herbert Smith Freehills LLP


to the extent that there is no specific instrument, such as a regu-lation or a convention, which is pertinent.


The term “decision” in sect. 328 I ZPO is defined as any type of final binding decision of substantive nature issued by a foreign court in civil matters which may include commercial, labour and employment as well as competition law matters.

In order to classify a foreign judgment as a decision in civil matters, a German court assesses the subject matter of the foreign judgment. German courts base this assessment on the German lex fori, and therefore on the legal notion of the subject matter in dispute (Streitgegenstandslehre).

The name, function or type attributed to a foreign body under its own laws is not relevant for this assessment.

Declaratory judgments, judgments on change of legal right or status, or judgments dismissing an action cannot be recog-nised and enforced to the extent that they do not have enforce-able content.

Judgments in family matters are not decisions in civil matters and do not fall within the scope of sect. 328 ZPO. These judgments are recognised and enforced according to the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (“FamFG”)), sect. 107 et seqq. FamFG.

Judgments must be, in principle, distinguished from court settlements and enforceable public deeds (Urkunden). The latter two generally do not constitute decisions for the purposes of sect. 328 ZPO unless the foreign court reviews and controls the legality of such acts.

Further, interim measures and court orders on the taking or securing of evidence are not final binding decisions either.


According to sect. 723 II ZPO sentence 2 in connection with sect. 328 I ZPO, recognition and enforcement of a foreign judg-ment are excluded if:(i) the foreign court was not internationally competent to

decide the dispute (sect. 328 I No. 1 ZPO). The German courts have to ascertain this requirement ex officio. This requirement is fulfilled if the foreign court would have jurisdiction to hear the matter had it applied German procedural law;

(ii) the defendant could not properly defend his case as the defendant was not duly and/or not timely notified of the foreign court proceedings brought against him (sect. 328 I No. 2 ZPO). The defendant has to invoke the lack of having been duly and/or timely notified in the enforce-ment proceedings;

(iii) the foreign judgment is irreconcilable with a German or an earlier foreign judgment between the same parties dealing with the same subject matter in dispute (sect. 328 I No. 3 ZPO);

(iv) the enforcement violates German public policy (sect. 328 I No. 4 ZPO); or

(v) reciprocity is not granted by the state in which the foreign judgment was rendered. A German court has to assess the actual recognition and enforcement practice of the foreign state vis-à-vis judgments issued in Germany under similar

Treaty of 19 July 1966 between Germany and Tunisia on Legal Protection, Legal Assistance, and the Recognition and Enforcement of Foreign Judicial Decisions in Civil and Commercial Matters and on Commercial Arbitration (“Treaty between Germany and Tunisia”).

Tunisia. Question 3.1.

Treaty of 20 July 1977 between the Federal Republic of Germany and the State of Israel on the Mutual Recognition and Enforcement of Judicial Decisions in Civil and Commercial Matters (“Treaty between Germany and Israel”).

Israel. Question 3.1.

Domestic LawCode of Civil Procedure.

All countries to which none of the aforementioned multilateral conven-tions apply or no bilateral treaty exists.

Insolvency Act. All countries to which none of the aforementioned multilateral conven-tions apply or no specific bilateral treaty exists.

Question 2.8.

Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction.

All countries to which none of the aforementioned multilateral conven-tions apply or no specific bilateral treaty exists.

Question 2.8.

2 General Regime


Under German law, the recognition of foreign judgments is governed in particular by sect. 328 of the German Code of Civil Procedure (Zivilprozessordnung (“ZPO”)), while the enforcement of foreign judgments is governed by sect. 722 and 723 ZPO. The provisions of sect. 328 and sect. 722, 723 ZPO only apply


102 Germany


court and request it to declare that the foreign judgment meets (or does not meet) the requirements set out in sect. 328 I ZPO.

The ZPO does not stipulate a specific enforcement proce-dure. Therefore, the general procedural rules of the ZPO apply, as follows:■ the foreign judgment creditor has to bring a lawsuit (e.g.,

application to declare the foreign judgment enforceable) against the foreign judgment debtor before the competent German courts;

■ once the court has notified the foreign judgment debtor of the application, followed by potentially one or two rounds of submissions, the court may hold an oral hearing (sect. 128 I ZPO); and

■ the verdict declaring the foreign judgment enforceable is rendered according to the general rules of the ZPO appli-cable to all other verdicts.

The requirements, which the plaintiff has to fulfil in order to have his foreign judgment declared enforceable, are stipulated in sect. 722, 723 ZPO (see above question 2.3).

When filing its application, the plaintiff has to supply a duly certified copy of the foreign judgment. Additionally, the German court may request authentication of the foreign judgment by a consular officer as a foreign judgment – contrary to German judgments – is not deemed to be authentic (sect. 438 I ZPO). If the country in which the foreign judgment was rendered is a contractual party to the Hague Convention on Abolishing the Requirement of Legislation for Foreign Public Documents of 1961, the plaintiff has to request the respective foreign compe-tent authority to issue an apostille and supply the German court therewith. German courts can also order the plaintiff to supply a certified translation of the judgment. Therefore, it is advisable that the plaintiff submits a translation – at least of the opera-tive part of the judgment – with the application of enforcement.


Grounds to challenge a foreign judgment are narrow and exhaustively stipulated in sect. 328 I ZPO (see above at ques-tion 2.3). Sect. 328 I ZPO stipulates several procedural and one substantive ground: the violation of public policy (No. 4). Such a violation requires that the enforcement of a judgment is obvi-ously irreconcilable with fundamental principles of German law, especially with fundamental rights. However, the prohi-bition of révision au fond of a foreign judgement applies: German courts cannot re-examine the merits of the case. Further, German courts interpret violations of public policy restrictively. Examples of violations of public policy are: (i) punitive damages if the amount of damages awarded in a

foreign judgment excessively outweighs the compensating function which damages have under German law; or

(ii) judgments obtained by fraud. Contrary thereto, pre-trial discovery – a non-existing feature

in German court proceedings – and the absence of written grounds in a judgment or a party’s exclusion from proceed-ings due to a contempt of court are not necessarily violations of public policy.

Further, the defendant can invoke substantive grounds in enforcement proceedings if these grounds have arisen after the foreign judgment was rendered. Such grounds may include the defendant’s compliance with the judgment (e.g. payment) or the plaintiff’s assignment of the claim – underlying the foreign judgment – to a third party.

circumstances (sect. 328 I No. 5 ZPO). However, even if reciprocity is not guaranteed, the judgment can be recog-nised and enforced if it concerns a non-pecuniary claim and if, under German law, German courts would not have had jurisdiction (sect. 328 II ZPO).

The grounds for refusal listed in sect. 328 I ZPO are exhaustive.


German courts assume the local and subject matter jurisdiction if the following requirements are met:

According to sect. 722 II ZPO, the foreign judgment cred-itor has to sue at the place where the defendant is located in Germany. Alternatively, the lawsuit may be brought in the district of the court where the defendant’s assets lie (sect. 23 ZPO). The subject matter jurisdiction is assessed on the basis of the amount in dispute in the enforcement proceedings. The district courts (Amtsgerichte) are competent (sect. 23 No. 1 Gerichtsverfassungsgesetz (“GVG”)) unless the amount in dispute exceeds EUR 5,000. In the latter case, the regional courts (Landgerichte) have subject matter jurisdiction (sect. 23 No. 1, 71 I GVG).


German law distinguishes between recognition (sect. 328 ZPO) and enforcement (sect. 722, 723 ZPO).

Recognition■ Recognition of a foreign judgment is granted automati-

cally, thus ipso iure.■ The exact scope of the legal effects of recognition in

Germany is in dispute. The majority of scholars argue that a foreign judgment will have the same legal effects as in the foreign jurisdiction.

■ Therefore, every public authority, notary or court in Germany has to respect and act according to the effects of the foreign judgment without any prior procedure of recognition. However, a foreign judgment will not have more effects than German judgments in Germany.

Enforcement■ Enforcement means the compulsory execution of a deci-

sion by means of German enforcement measures. ■ The enforcement of a foreign judgment in Germany is

only admissible if a German court has issued an enforce-ment judgment in favour of the foreign judgment creditor (exequatur proceedings).

■ This enforcement judgment will serve as a basis for the compulsory execution in Germany if the foreign judgment debtor does not fulfil the judgment.


As recognition of a foreign judgment is granted ipso iure (see above at question 2.5):■ the ZPO does not stipulate any recognition procedure; and■ any party may file a positive or negative declaratory action

(Feststellungsklage) (sect. 256 I ZPO) with the competent





As stated under question 2.7, there is no révision au fond. Except for violations of public policy, a German court does not assess whether a foreign court applies German substantive law correctly.


The ZPO and GVG apply in all 16 German states. The states do not have any regulatory power to pass laws that would deviate from federal procedural law and thus the ZPO.


German law does not provide for a statute of limitation period to initiate legal actions to obtain an enforcement judgment. However, sect. 197 I No. 3 German Civil Code (Bürgerliches Gesetzbuch (“BGB”)) stipulates that claims which have been declared final by way of judgment, court settlements or arbitral awards become time-barred after 30 years.



Multilateral ConventionsLugano ConventionThe rules of recognition and enforcement of foreign judgments under the Lugano Convention apply (i) in civil and commercial matters, and (ii) if a German court has to enforce a foreign judg-ment issued in one of the EFTA states (Iceland, Switzerland and Norway).

The Lugano Convention is aligned with the Brussels I Regulation of 2001 (Council Regulation (EC) No. 44/2001 of 22 December 2000). Accordingly, foreign judgments are ipso iure, and thus automatically recognised without any special procedure required (Art. 33 I).

The enforcement procedure itself under the Lugano Convention is different from the one under the ZPO (see above at question 2.6) as it comprises two stages: In the first stage, the foreign judgment creditor has to apply to the competent court for the judgment to be declared enforceable. Upon completion of certain formalities stip-ulated in the Lugano Convention (Art. 53, 54 and 55), the court has to declare the judgment enforceable (Art. 41). In this first stage of the enforcement proceedings – and contrary to the German ZPO – the court will not assess whether any grounds to refuse enforce-ment (Art. 34 and 35) are fulfilled and the foreign judgment debtor will not be heard (Art. 41). The debtor will only be informed that the judgment was declared enforceable.

Only in the second stage can the foreign judgment debtor appeal the decision of enforceability within one month and invoke the grounds to refuse enforcement listed in Art. 34 and


For insolvency matters the German Insolvency Act (Insolvenzordnung (“InsO”)) applies: Sect. 343 I InsO stipulates that foreign insol-vency proceedings are recognised in Germany unless the foreign court does not have jurisdiction according to German procedural law or the recognition would violate public policy. Furthermore, according to sect. 353 I InsO in connection with sect. 722, 723 ZPO enforcement of a judgment in insolvency matters will be granted if the requirements of sect. 328 I ZPO are complied with (see above at question 2.3). Contrary to the enforcement of judg-ments in civil matters, the term “decision” in insolvency matters also encompasses decisions by an administrative authority if the latter is the competent authority to hear insolvency matters in that country.

As set out above, recognition and enforcement of deci-sions in family matters are governed by sect. 107–110 FamFG and not by the ZPO. Family matters covered by the FamFG include, inter alia, matrimonial and parental matters, guardi-anship, adoption and inheritance. As regards the recognition of foreign judgments in family matters, the FamFG draws the following distinction: foreign decisions in matrimonial matters (divorce, legal separation, annulment of marriage, etc.) are not recognised ipso iure. They are only recognised if the competent authority (Landesjustizverwaltung) determines that the require-ments of recognition are fulfilled (sect. 107 FamFG). Other foreign judgments in family matters are recognised ipso iure (sect. 108 FamFG) unless the requirements set out in sect. 109 I, IV FamFG are met. These requirements are largely identical to those set out in sect. 328 I ZPO (see above at question 2.3). Likewise, enforcement of a foreign judgment can be denied if these requirements are met (sect. 110 I FamFG).


a) A local judgment always takes absolute priority over a foreign judgment dealing with the same matter in dispute and given between the same parties regardless of whether the foreign judgment was issued prior to the local judg-ment (see above at question 2.3).

b) Likewise, local proceedings which have become pending prior to a foreign judgment take precedent over that foreign judgment (see above at question 2.3).


There is no révision au fond of a foreign judgment (sect. 723 I ZPO). Only in cases in which the enforcement of a foreign judgment would violate a conflicting local law which qualifies as ordre public, enforcement would be denied.

Similarly, a prior local judgment between different parties and being contrary to the judgment sought to be enforced is not a ground to refuse enforcement as the requirements of sect. 328 I No. 2 are not fulfilled (identity of the parties of the foreign and the local judgment). Indeed, contrary to common law systems, the principle of stare decisis does not exist in Germany.


104 Germany


the decision is final and binding; (iii) proof that the decision would be enforceable in Tunisia; (iv) the defendant was duly notified of the proceedings brought against him in Tunisia; and (v) a certified translation of the aforementioned documents.


The Lugano Convention, the Treaty between Germany and Israel and the one between Germany and Tunisia all distinguish between recognition and enforcement of a foreign judgment. However, these treaties ascribe similar effects to recognition and enforcement as under German procedural law.

The Hague Convention on Civil Procedure does not address questions of recognition of cost orders, but only governs their enforcement.

The Hague Convention on Maintenance Obligations itself does not distinguish between recognition and enforcement. Recognition and enforcement of a decision shall be governed by the law of the enforcement state (Art. 13). Therefore, recog-nition and enforcement under the Convention have the same effects as under German procedural law.


Lugano ConventionThe procedure is set out above at question 3.1.

Hague Convention on Civil ProcedureThe request to have a cost order declared enforceable has to be done through diplomatic channels (Art. 18 I). Up until today, Germany has not ratified the Hague Convention on the International Access to Justice of 25 October 1980 which would facilitate this cumbersome procedure.

A decision on the enforceability is subject to subsequent appeal by the losing party (Art. 19 I).

Hague Convention on Maintenance ObligationsRecognition and enforcement of the foreign judgment is governed by the law of the enforcement state (see above at ques-tion 3.2). Therefore, sect. 722 and 723 ZPO apply (see above at questions 2.4 and 2.6).

Treaty between Germany and IsraelJudgments are recognised automatically without any specific procedure. A party may only bring a declaratory action to refuse recognition (Art. 9 II).

Enforcement is governed by German law unless the Treaty provides otherwise (Art. 11). Consequently, the judgment cred-itor has to initiate the enforcement proceeding with the competent regional court (Landgericht) in Germany where the debtor has its seat or where enforcement is sought (Art. 14 I). A German court does not look into merits of the judgment (Art. 16). However, the defendant may raise substantive objections against the underlying claim if these objections have arisen after the judgment was given (Art. 16 II).

Treaty between Germany and Tunisia The judgment creditor has to bring an action before the German regional court where the judgment debtor has its seat or where the enforcement shall take place (Art. 37).

35 (Art. 45 I). The grounds to refuse enforcement are compa-rable to those listed in sect. 328 I ZPO. Also, the prohibition of the révision au fond applies (Art. 45 II).

Hague Convention on Civil Procedure Orders for court costs and expenses shall be declared enforce-able without a hearing (Art. 19 I). The party seeking enforcement must provide (i) a copy of the judgment fulfilling the conditions required for its authenticity, (ii) proof of the force of res judicata of the underlying judgment, and (iii) a certified copy of the oper-ative part of the judgment in the language of the authority where enforcement is sought, or in any other language agreed between the states, or a translation in one of the languages certified by a consular officer or sworn translator.

Hague Convention on Maintenance ObligationsTo the extent applicable, a judgment is recognised or enforced in another contracting state if the judgment has the force of res judi-cata and was rendered by an authority having jurisdiction (Art. 4 in connection with Art. 7 and 8).

A party seeking recognition or enforcement of a judgment shall furnish the following documents (Art. 17): (i) a complete and true copy of the judgment; (ii) any document necessary to prove that the decision is no longer subject to ordinary forms of review in the state of origin; and (iii) a certified translation of the aforementioned documents. Furthermore, recognition and enforcement of a judgment rendered by default may only be recognised or enforced if the defaulting party was notified of the institution of the court proceedings (Art. 6).

CMRA specific procedure regarding recognition does not exist.

An enforceable judgment rendered under the CMR is also enforceable in any other contracting state, if the formal require-ments for enforcement set out by the enforcement country are met (Art. 31 III). As a corollary, a judgment rendered under the CMR may be enforced in Germany if the requirements of sect. 722, 723 ZPO are fulfilled.

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“NYC”) It is by far the most important multilateral agreement regarding the recognition and enforcement of foreign awards in Germany. State court judgments are not within the scope of the NYC (Art. 1 II).

Bilateral ConventionsTreaty between Germany and IsraelFinal decisions in civil and commercial matters rendered in Israel are automatically recognised in Germany (Art. 3 and 9 I). The Treaty between Germany and Israel stipulates various grounds based on which recognition may be refused. These grounds are, among others, set out in Art. 5, which largely resemble the grounds in sect. 328 I ZPO.

Decisions are enforceable in Germany if they are enforceable in Israel and recognisable in Germany (Art. 10).

Treaty between Germany and TunisiaJudgments in all civil matters, excluding matters mentioned in Art. 28 (e.g. matrimonial, maintenance matters, insolvency), are recognised automatically if they are final and binding (Art. 27). Recognition may only be denied based on one of the grounds listed in Art. 29 I, II (Art. 33).

Likewise, a foreign judgment has to be declared enforceable by a court of the country where enforcement is sought (Art. 34). The judgment creditor has to prove by way of certified docu-ments the following requirements set out in Art. 38: (i) a certi-fied copy of the decision sought to be enforced; (ii) proof that




5 Other Matters


A higher regional court decided that a German court can assume international jurisdiction according to sect. 23 GVG based on emergency jurisdiction (Notzuständigkeit). The requirements for such jurisdiction are fulfilled if: (i) recognition of a foreign judg-ment is refused (e.g. if reciprocity is not granted (sect. 328 I No. 5 ZPO)); and (ii) legal protection was to be refused without such emergency jurisdiction. This is, in particular, the case if the foreign judgment creditor has a legal interest, such as seizing assets in Germany (OLG München, 15 U 4039/18, 27 February 2019, para. 36). The regional higher court based this emergency jurisdiction on the rule of law principle enshrined in article 20 III of the German Constitution (Grundgesetz ) and the right to justice.

A recent decision, in which a court has refused enforce-ment of a foreign award, is also relevant to determine the viola-tion of the German ordre public in enforcement proceedings of foreign judgments: an award debtor had been ordered to pay an interest rate for default of payment in the order of 180 per cent per year. The court held that such an interest rate was exorbi-tantly high and was to such an extent contra bonos mores that it refused enforcement of the award for violation of the ordre public (KG Berlin, 7 February 2019, BeckRS 2019, 5992, para. 11 et seq.). This decision confirms – like in enforcement proceedings of foreign judgments – that German courts apply the violation of ordre public very restrictively (see also BGH, 22 June 2017, IX ZB 61/16).


Judgments quickly exceed a value of EUR 5,000. In these cases, the regional courts (Landgerichte) are competent to decide on the enforcement of the foreign judgment. Under German law, it is mandatory for clients to be represented by counsel in proceed-ings pending with the regional courts. Therefore, foreign judg-ment creditors need to retain counsel. Contrary to the general rule of court fees being dependent on the amount of the dispute, court costs for exequatur proceedings amount only to EUR 240. It has to be noted, though, that fees for counsel may indeed be higher as they are often based on pre-agreed hourly rates. It should be noted that contrary to other jurisdictions, contin-gency fees are prohibited under German law.


Except for the Hague Convention on Civil Procedure and the Hague Convention on Maintenance Obligations, all treaties listed under section 1 set out grounds for refusal of recogni-tion and/or enforcement (Art. 34 and 35 (Art. 45 I) Lugano Convention, Art. 5 and Art. 10 Treaty between Germany and Israel and Art. 29, 30 and 39 Treaty between Germany and Tunisia). The grounds are largely comparable to the grounds set out in sect. 328 I ZPO (see above at question 2.3) and typi-cally are: (i) the enforcement would violate public policy; (ii) the court that has given the foreign judgment lacked jurisdiction over the dispute; (iii) a lack of due notification of the foreign court proceedings; (iv) the judgment is incompatible with a pending dispute between the same parties in the state where the enforcement is sought; (v) the judgment is incompatible with an earlier judgment given in Germany between the same parties and regarding the same matter in dispute; or (vi) the operative part of the foreign judgment has already been fulfilled.

4 Enforcement


Prior to selecting a specific enforcement measure, the judg-ment creditor must officially serve the judgment debtor with a copy of the judgment certifying its enforceability (Klausel ). The measures of enforcement available to a judgment creditor under German law depend on the nature of the judgment as well as the nature of the assets of the judgment debtor in Germany. They comprise the following: (i) the seizure of the judgment debtor’s movable assets by way of a bailiff (sect. 803 et seqq. ZPO); (ii) seizure of claims/bank accounts by way of a court order (sect. 828 et seqq. ZPO); (iii) the seizure of the judgment debtor’s immovable assets by way of foreclosure, registry of a force mort-gage, or compulsory administration (sect. 866 I ZPO); or (iv) measures to obtain restitution of specific things and to forcibly obtain certain actions or omissions (sect. 883 et seqq. ZPO).


106

Catrice Gayer regularly acts as counsel and arbitrator in international and national arbitration cases. Her particular fields of industry are energy/infrastructure, IP and antitrust (including FRAND), commercial (agency, trade, distribution, licence), and corporate disputes. She also acts as (co-)counsel in enforcement proceedings of awards and foreign judgments before German courts and abroad. Her track record also includes the representation of national and foreign clients in civil and commercial disputes before the regional courts. Catrice Gayer is recognised for her dispute resolution work in leading directories. She has been recommended as a Rising Star (Commercial Arbitration) in Expert Guides and is ranked in Who’s Who Legal’s Future Leaders in Arbitration. She is an appointed member of the ICC Commission on Commercial Law and Practice. Further, she is a regional chair of the DIS40, a co-chair of the Young CEAC and a member of the Executive Committee of the AIJA. Catrice Gayer regularly publishes on international litigation, arbi-tration and corporate matters. She is fluent in English, French and German.

Herbert Smith Freehills LLPBreite Str. 29–3140213 DüsseldorfGermany

Tel: +49 211 975 59000Email: [email protected]: www.herbertsmithfreehills.com

Herbert Smith Freehills is one of the world’s leading law firms. We advise many of the biggest and most ambitious organisations across all major regions of the globe. Our clients trust us with their most important transac-tions, disputes and projects because of our ability to cut through complexity and mitigate risk. With 27 offices spanning Africa, Asia, Australia, Europe, the Middle East and the US, we offer local insight and seamless cross-border service in all major regions. Positioned to support the major trade flows, we help the world’s top companies thrive in the global economy.With a multi-disciplinary global disputes team of world-leading sector specialists and regional experts, we provide commercial insight and legal advice. Bringing together litigators, arbitrators, mediators, advocacy experts, regulatory specialists, and investigators, whatever the challenge or opportunity, we partner with our clients every step in the process.

www.herbertsmithfreehills.com

Germany

Sören Flecks is an associate in Herbert Smith Freehills’ disputes practice, based in Düsseldorf specialising in international arbitration. He advises domestic and international clients on all matters relating to out-of-court settlements including mediation, litigation and arbitration. He has a special focus on infrastructure/construction, energy, post-M&A disputes and investor-state arbitration.Sören completed his legal traineeship with the regional court of Cologne with a stage at the German General Consulate in Cape Town, South Africa, and received a Master of Laws degree from New York University, School of Law in 2014. Prior to joining Herbert Smith Freehills in 2017, Sören worked for an arbitration boutique firm in Cologne, Germany.

Herbert Smith Freehills LLPBreite Str. 29–3140213 DüsseldorfGermany

Tel: +49 211 975 59136Email: [email protected]: www.herbertsmithfreehills.com




Chapter 18 107

Greece

Papadimitriou – Pimblis & Partners Nikos L. Kanellias

Greece

Bilateral TreatiesTreaty between Greece and Yugoslavia of 18.06.1959

New Yugoslavia-Montenegro-Croatia

Section 3

Treaty between Greece and the Federal Republic of Germany

Germany Section 3

Treaty between Greece and Romania of 19.10.1972

Romania Section 3

Treaty between Greece and Lebanon of 05.04.1975

Lebanon Section 3

Treaty between Greece and Bulgaria of 10.04.1976

Bulgaria Section 3

Treaty between Greece and Hungary of 08.10.1979

Hungary Section 3

Treaty between Greece and Czechoslovakia of 22.10.1980

Czech Republic and Slovakia

Section 3

Treaty between Greece and the Union of Soviet Socialist Republics of 21.05.1981

Russia and all former Soviet Republics except Estonia, Latvia, Lithuania and Georgia

Section 3

Treaty between Greece and Syria of 02.06.1981

Syria Section 3

Treaty between Greece and Cyprus of 05.03.1984

Cyprus Section 3

Treaty between Greece and Albania of 17.05.1993

Albania Section 3

1 Country Finder





In this chapter the author will mainly address commercial and civil matters. The list of treaties under Section 1 is not exhaustive.Multilateral ConventionsLugano Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters of 30.10.2007 (Lugano Convention)

EU Member States and Iceland, Denmark, Norway and Switzerland

Section 3

UNCITRAL Model Law on Cross-Border Insolvency of 1997, Law 3858/2010

Foreign court or representative seeking assistance in connection with a foreign insol-vency proceeding

Section 3

Hague Convention on Maintenance Obligations of 02.10.1973

Countries signa-tory to the Convention

Section 3

Convention on the Contract for the International Carriage of Goods by Road of 19.05.1956 (“CMR”)


Section 3

Hague Convention on Civil Procedure of 01.03.1954


Section 3


108 Greece


for the same parties dealing with the same subject matter in dispute; and (e) it is not contrary to the principles of morality and does not violate Greek public policy (public order – “ordre public” – the funda-mental rights and principles of domestic law). Though recognition of a foreign judgment is ipso jure, provided that the abovementioned conditions are met, the interested party can file a petition in court seeking a judgment on whether or not the res judicata of a foreign judgment has or does not have effect in Greece. A foreign judg-ment issued pursuant to the voluntary (uncontested cases) proce-dure, pursuant to article 780 of the Code of Civil Procedure, shall ipso jure have the same force and effect in Greece as under the law of the country of the court which issued it, provided that: (a) under the provisions of Greek law the foreign court had international jurisdic-tion to decide the case; and (b) it is not contrary to the principles of morality and does not violate public policy. For the enforcement of a foreign judgment or title in Greece, under article 905 of the Code of Civil Procedure, it is required to be enforceable in the country of issuance, the conditions of article 323(b–e above) must be met and it cannot violate the Greek public order.


The procedure is explained in question 2.6. For an enforcement to take effect, an application must be submitted to the Greek single-member first instance court in cases where the defendant has his residence in Greece or, in the absence of such residence, to the Greek single-member first instance court of the capital (Athens).


Greek law distinguishes between recognition (articles 323 and 780 of the Code of Civil Procedure) and enforcement (article 905 of the Code of Civil Procedure). Recognition of a foreign judg-ment is granted automatically, thus ipso jure. A foreign judgment will have the same legal effects as in the foreign jurisdiction, if the conditions mentioned above at question 2.3 are met. Therefore, every public authority or court in Greece has to respect and act according to the effects of the foreign judgment without any prior procedure of recognition. However, a foreign judgment cannot have more effects than Greek judgments in Greece. Enforcement means the compulsory execution of a decision by means of the Greek enforcement measures (mainly articles 904–054 of the Code of Civil Procedure). The enforcement of a foreign judg-ment in Greece is only admissible if the one-member first instance court has issued an enforcement judgment in favour of the foreign judgment petitioner. This enforcement judgment will serve as a basis for the compulsory execution in Greece.


As recognition of a foreign judgment is granted ipso jure provided that the conditions set out in article 323 or article 780 of the Code of Civil Procedure are met (see above at questions 2.3 and 2.5), the Code of Civil Procedure does not stipulate any recognition proce-dure. Any party may file a positive or negative declaratory action with the competent court and request it to declare that the foreign judg-ment meets (or does not meet) the requirements set out in article 323 or article 780 of the Code of Civil Procedure. For an enforcement to take effect, an application must be submitted to the competent

Treaty between Greece and China of 17.10.1994

China Section 3

Domestic LawCode of Civil Procedure

All countries to which none of the aforementioned multilateral or bilateral treaties apply

Section 2

Law 3858/2010 implementing in Greece the UNCITRAL Model Law on Cross-Border Insolvency of 1997

Foreign court or representative seeking assistance in connection with a foreign insol-vency proceeding

Section 2

2 General Regime


Under Greek law, the recognition of foreign judgments is governed in particular by articles 323 and 780 of the Code of Civil Procedure and enforcement by articles 905 and 906 of the same Code. Articles 15–21 of Law 3858/2010, that implemented in Greece the UNCITRAL Model Law on Cross-Border Insolvency of 1997, cover the recognition of foreign insolvency proceedings.


Under article 323 of the Greek Code of Civil Procedure, any final judgment issued by a foreign court in civil matters (including commercial, labour and family matters) is recognised in Greece. Article 780 of the same code covers foreign judgments issued under voluntary (not contentious) jurisdiction. Under Greek law, enforcement is different from recognition which takes place auto-matically without any particular procedure, provided that the rele-vant reasons of non-recognition of Greek law are observed. Under article 904 point στ) of the Code of Civil Procedure, foreign titles (the term includes judgments) are enforceable in Greece, provided that they are declared enforceable in Greece by the competent court (One-member First Instance Court – “Monomeles Protodikeio”), as per article 905 of the Code of Civil Procedure.


Under Greek law, enforcement is different from recognition which is granted automatically (ipso jure). According to article 323 of the Greek Code of Civil Procedure, a foreign judgment is recognised provided that: (a) it constitutes res judicata according to the law of the foreign country; (b) under the provisions of Greek law the foreign court had international jurisdiction to decide the case; (c) the defendant was not deprived of the right to a defence and of the right to participate in the trial, unless he/she was deprived of such right according to a provision that applies equally to the subjects of the country to which the court that issued the judgment belongs; (d) it is not contrary to a Greek judgment which constitutes res judicata


109Papadimitriou – Pimblis & Partners


competent court. Recognition is granted as long as the foreign procedure does not contradict public order. The procedure is recognised as either (a) a foreign main procedure, if it has been opened in the state where the debtor has its centre of main interests, or (b) a foreign non-main procedure, if the debtor has an establish-ment in the foreign state where the proceedings have been opened. Greece has also adopted the UNCITRAL Model Arbitration Law by Law 2735/1999 which regulates international arbitration conducted in Greece. Under article 36 of this law, foreign arbi-tral awards are to be enforced in Greece under the 1958 New York Convention, which has been incorporated into Greek law by legis-lative decree 4220/1961. All judgments issued by courts in the rest of the contracting states of the New York Convention are enforce-able in Greece under this particular Convention. Under article V of the New York Convention (legislative decree 4220/1961), a foreign award will not be enforced in Greece if it violates Greek ordre public (point 2b) and if it is not suitable for settlement by arbitration under Greek law (point 2a) (arbitrability). Judgments issued in a non-New York Convention contracting state or in a country with which Greece has not entered into an International Convention are also enforceable in Greece under the relevant provisions of the Greek Code of Civil Procedure, as presented hereunder.


The recognition and enforcement of a foreign judgment when there is a (final) conflicting local judgment between the parties relating to the same issue is not possible pursuant to articles 323 and 905 of the Greek Code of Civil Procedure. The recogni-tion and enforcement of a foreign judgment when there are local proceedings pending between the parties is possible pursuant to articles 323 and 905 (see above at question 2.3).


There is no révision au fond of a foreign judgment. Only in cases in which the enforcement of a foreign judgment would violate a conflicting local law which qualifies as public order, enforce-ment would be denied. Similarly, a prior local judgment between different parties and it being contrary to the judgment sought to be enforced is not a ground to refuse enforcement.


As stated under question 2.7, there is no révision au fond. Except for violations of public order, a Greek court does not assess whether a foreign court applies Greek substantive law correctly.


The Code of Civil Procedure applies to the entire territory of Greece with no exception.

Greek single-member first instance court seeking the declaration of enforceability of the foreign judgment. The application is scheduled to be heard on a certain hearing date and the applicant must appear before the court on that day and file with the court its written plead-ings and supporting documentation. The application is heard under the voluntary procedure which is an ex parte procedure, i.e. the party against whom the declaration of enforceability of the judgment is sought will not participate in the proceedings, unless: (a) the appli-cant elects to summon this party to attend the hearing; (b) the court orders such party to be summoned to attend the hearing; or (c) such party is somehow informed of the filing of the application and the pending hearing and intervenes in the proceedings. The decision on the declaration of enforceability is issued by the court in writing after the hearing has been concluded and pleadings, additional plead-ings and supporting documentation have been filed. When filing its application, the plaintiff has to supply a duly certified copy and a certified translation of the foreign judgment. If the country where the foreign judgment was rendered is a contractual party to the Hague Convention on Abolishing the Requirement of Legislation for Foreign Public Documents of 1961, the plaintiff has to request the respective foreign competent authority to issue an apostille and supply the Greek court therewith. The defendant can initiate an appeal on factual and legal issues against an enforcement judg-ment before the Court of Appeals. Further, the defendant can file an appeal on points of law before the Greek Supreme Court.


Recognition of a judgment can be challenged for not meeting any of the conditions set out in article 323 of the Code of Civil Procedure. Enforcement of a judgment can be challenged for not meeting any of the conditions set out in articles 905 and 323 of the Code, i.e. if the foreign judgment is not enforceable pursuant to the law of the country of issuance or if it is contrary to the principles of morality or public order or if it does not meet any of the conditions of article 323. Such a violation requires that the enforcement of a judgment is obviously irreconcilable with the fundamental principles of Greek law, especially with fundamental rights. However, the prohibi-tion of révision au fond applies: Greek courts cannot re-examine the merits of the case. Further, the defendant can invoke substantive grounds in enforcement proceedings if these grounds have arisen after the foreign judgment was rendered. Such grounds may include the defendant’s compliance with the judgment (e.g. payment) or the plaintiff’s assignment of the claim – underlying the foreign judgment – to a third party. Recognition of a judgment can be challenged: (a) prior to the issuance of the decision of the court on the applica-tion for the declaration of enforceability of the foreign judgment if the defendant is summoned to attend the hearing or intervenes in the proceedings and opposes the application for the declaration of enforceability; and (b) after the issuance of the said judgment of the court. The party against which enforcement is sought may file an appeal against the judgment of the court. The appeal must be filed at the earliest of 30 days from service of the judgment of the court, or two years from the issuance of the judgment.


For insolvency matters, Law 3858/2010 implementing in Greece the UNCITRAL Model Law on Cross-Border Insolvency of 1997 introduces the concept of recognition of a foreign insolvency proce-dure on application by a foreign insolvency representative to the


110 Greece


CMRA specific procedure regarding recognition does not exist. An enforceable judgment rendered under the CMR is also enforce-able in any other contracting state, if the formal requirements for enforcement set out by the enforcement country are met (article 31 III). As a corollary, a judgment rendered under the CMR may be enforced in Greece if the requirements of the Greek Code of Civil Procedure are fulfilled.

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 It is by far the most important multilateral agreement regarding the recognition and enforcement of foreign awards in Greece. State court judgments are not within the scope of the New York Convention (article 1 II).

Bilateral ConventionsThe treaties between Greece and various states stipulate various grounds based on which recognition or enforcement may be refused. These grounds largely resemble the grounds in sect. 323 of the Code of Civil Procedure.


The Lugano Convention and the treaties between Greece and third countries distinguish between recognition and enforcement of a foreign judgment. However, these treaties ascribe the same effect to recognition and enforcement as under Greek proce-dural law. The Hague Convention on Civil Procedure does not address questions of recognition of cost orders, but only governs their enforcement. The Hague Convention on Maintenance Obligations itself does not distinguish between recognition and enforcement. Recognition and enforcement of a decision shall be governed by the law of the enforcement state (article 13). Therefore, recognition and enforcement under the Convention have the same effects as under Greek procedural law.


Lugano Convention: The procedure is set out above at ques-tion 3.1.

Hague Convention on Civil Procedure: The request to have a cost order declared enforceable has to be done through diplo-matic channels (article 18 I). A decision on the enforceability is subject to subsequent appeal by the losing party (article 19 I).

Hague Convention on Maintenance Obligations: Recognition and enforcement of the foreign judgment is governed by the law of the enforcement state (see above at question 3.2). Therefore, the Greek procedural law applies (see above at questions 2.4 and 2.6).

Under the treaties between Greece and third countries, judg-ments are recognised automatically without any specific proce-dure. Enforcement is governed by Greek law unless the treaties provide otherwise. Consequently, the judgment creditor has to initiate the enforcement proceeding with the competent court in Greece where the debtor has its seat or where enforcement is sought (article 14 I).


Greek law does not provide for a statute of limitations period to initiate legal actions to obtain a judgment for recognising or enforcing a foreign judgment. However, article 268 of the Greek Civil Code stipulates that claims which have been declared final become time-barred after 20 years.



Multilateral ConventionsLugano ConventionThe Lugano Convention is aligned with the Brussels I Regulation of 2001 (Council Regulation (EC) No. 44/2001 of 22.12.2000). Accordingly, foreign judgments are ipso jure, and are thus automati-cally recognised without any special procedure required (article 33 I). The enforcement procedure itself under the Lugano Convention is different from the one under the Code of Civil Procedure (see above at question 2.6) as it comprises two stages: in the first stage, the foreign judgment creditor has to apply to the competent court for the judgment to be declared enforceable. Upon completion of certain formalities stipulated in the Lugano Convention (articles 53, 54 and 55), the court declares the judgment enforceable (article 41). In this first stage of the enforcement proceedings, contrary to Greek law, the court will not assess whether any grounds to refuse enforcement (articles 34 and 35) are fulfilled and the foreign judg-ment debtor will not be heard (article 41). The debtor will only be informed that the judgment was declared enforceable. Only in the second stage can the foreign judgment debtor appeal the deci-sion of enforceability within one month and invoke the grounds to refuse enforcement listed in articles 34 and 35 (article 45 I). The grounds to refuse enforcement are comparable to those listed in sect. 323 of the Code of Civil Procedure. Also, the prohibition of the révision au fond applies (article 45 II). The Hague Convention on Civil Procedure Orders for court costs and expenses shall be declared enforceable without a hearing (article 19 I). The party seeking enforcement must provide (i) a copy of the judgment fulfilling the conditions required for its authenticity, (ii) proof of the force of res judicata of the underlying judgment, and (iii) a certi-fied copy of the operative part of the judgment in the language of the authority where enforcement is sought, or in any other language agreed between the states, or a translation in one of the languages certified by a consular officer or sworn translator.

Hague Convention on Maintenance Obligations To the extent applicable, a judgment is recognised or enforced in another contracting state if the judgment has the force of res judicata and was rendered by an authority having jurisdiction (article 4 in connection with articles 7 and 8). A party seeking recognition or enforcement of a judgment shall furnish the following documents (article 17): (i) a complete and true copy of the judgment; (ii) any document necessary to prove that the decision is no longer subject to ordinary forms of review in the state of origin; and (iii) a certified translation of the aforemen-tioned documents. Furthermore, recognition and enforcement of a judgment rendered by default may only be recognised or enforced if the defaulting party was notified of the institution of the court proceedings (article 6).


111Papadimitriou – Pimblis & Partners


5 Other Matters


In a recent decision, the High Civil Court (Areios Pagos) confirmed that Greek courts apply the violation of ordre public very restrictively (AP decision 579/2019). The Court confirmed its longstanding case law that it does not qualify as a violation of the ordre public if the foreign judgment had awarded restitution of legal costs at the amount of three times the amount of the dispute, even if a Greek court would not award more than 6% of the amount. In the case at hand, Areios Pagos annulled a deci-sion of the Court of Appeal which ruled that the legal costs of an amount of 116,290.86 British Pounds, awarded by an English High Court of Justice against the defendant for a dispute in which the same court awarded 40,000 British Pounds of puni-tive damages, did not violate public policy.


Greek courts are very careful with the application of the provi-sions for non-enforcement of foreign judgments. There are rather few Greek judgments under which enforcement has been denied, mostly on ordre public grounds. Under Greek law, it is mandatory for clients to be represented by counsel in proceed-ings seeking to recognise and enforce the foreign judgment. It should be noted also that some applications for the recogni-tion and/or enforcement of a foreign judgment are rejected on procedural or evidentiary grounds, so clients have to produce the required translation or certification pertaining to the foreign judgment in question.


Except for the Hague Convention on Civil Procedure and the Hague Convention on Maintenance Obligations, all treaties listed under Section 1 set out grounds for refusal of enforce-ment. The grounds are largely comparable to the grounds set out in the Greek Code of Civil Procedure (see above at ques-tion 2.3).

4 Enforcement


Prior to selecting a specific enforcement measure, the judg-ment creditor must officially serve the judgment debtor with a copy of the judgment certifying its enforceability. The meas-ures of enforcement available to a judgment creditor under Greek law depend on the nature of the judgment as well as the nature of the assets of the judgment debtor in Greece. They comprise seizure of movable assets by way of a bailiff, seizure of claims/bank accounts by way of a written demand served to the bank, seizure of immovable assets by way of foreclosure, registry of a force mortgage, or compulsory administration.


112

Nikos L. Kanellias joined the Firm in 2015. He has a broad, successful commercial and civil litigation practice advising and representing companies and individuals across a range of industries, and is also experienced in conveyancing, financing of real estate acquisition and negotiation of property construction agreements. He regularly represents clients in debt recovery and enforcement, with a specialisation in the area of Banking and Finance, Insolvency and Restructuring.

Papadimitriou – Pimblis & Partners6, Patriarchou Ioakeim street10674 AthensGreece

Tel: +30 210 72 56 593Email: [email protected]: ppandpartners.gr

The Firm was established in 1985, by the late professor of Constitutional Law, George Papadimitriou, as “Papadimitriou Law Office”. In December 2017, Nikos E. Pimblis joined the Firm as its new Managing Partner and the Firm was renamed “Papadimitriou – Pimblis & Partners Law Firm”. The Firm, having a combination of well-known experts in both Public and Commercial Law, offers its clients a considerable advantage in all complex transactions and litigation. Such advantage is particularly evident in cases of public procurements, privatisation projects, M&As involving state partic-ipations and/or a complex regulatory framework, though it is generally necessary in almost all major transactions in the Greek market.

ppandpartners.gr


Greece



Chapter 19 113

Hong Kong

Gall

Ashima Sood

Nick Gall

Hong Kong

Kritika Sethia

2 General Regime


In the absence of any special statutory regime, a foreign judgment would be recognised and enforced in Hong Kong at common law.


Under common law, there is no specific definition of a ‘judg-ment’ in relation to the recognition and enforcement of a foreign judgment. Please refer to question 2.3 below for features required in a foreign judgment for it to be capable of recognition and enforcement in Hong Kong under common law.

For the definition of judgment under the FJREO and the MJREO, see question 3.1 below.


The requirements that a foreign judgment must satisfy in order to be recognised and enforced in Hong Kong depend on whether any of the relevant statutory regimes apply. Where the FJREO or the MJREO do not apply, the foreign judgment would be recognised and enforced at common law.

Recognition under common lawFor recognition of a foreign judgment under common law, fresh proceedings will need to be commenced based on the foreign judgment by issuing a writ. A foreign judgment may be recog-nised and enforced if:1. as per Hong Kong rules, the foreign court had properly

exercised jurisdiction over the parties and the subject matter;

2. the judgment is final and conclusive between the parties upon the merits of the claim in the foreign jurisdiction; and

1 Country Finder





Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) (the “FJREO”)

AustraliaAustriaBelgiumBermudaBruneiFranceGermanyIndiaIsraelItalyMalaysiaThe NetherlandsNew ZealandSingaporeSri Lanka

Section 3

Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597) (the “MJREO”)

China (except Macau and Taiwan)

Section 3

Common law If enforcement of the foreign judgment is not available under the FJREO or the MJREO, the common law regime applies, for example, in case of judgments from the United Kingdom, the United States, etc.

Section 2


114 Hong Kong


Procedure for enforcement under common lawWhere a foreign judgment has been successfully sued upon under common law, it can then be enforced in Hong Kong. The method of enforcement will vary depending on the type of enforcement desired (see question 4.1 below).


Grounds for challenge under common lawUnder common law, a judgment debtor may defend the Hong Kong action brought by a judgment creditor on the following grounds:1. the foreign court had no jurisdiction over the claim;2. the foreign judgment is not final and/or conclusive over

the merits of the claim; 3. the claim is not for a fixed sum of money;4. the foreign judgment is contrary to substantial justice, or

procured by fraud, or contrary to public policy; or5. the foreign judgment is inconsistent with a previous deci-

sion rendered in Hong Kong or a foreign judgment recog-nisable in Hong Kong.

The challenge can be made at the time of filing of the defence to the claim.


The recognition and enforcement of foreign judgments in rela-tion to certain specific subject matters is governed by separate statutory regimes, including:■ family law matters under the Maintenance Orders

(Reciprocal Enforcement) Ordinance (Cap. 188);■ judgments in connection with the carriage of nuclear mate-

rials under the Nuclear Material (Liability for Carriage) Ordinance (Cap. 479) or carriage of oil under the Merchant Shipping (Liability and Compensation for Oil Pollution) Ordinance (Cap. 414);

■ applications for assistance in criminal matters under the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525); and

■ probate and letters of administration under the Probate and Administration Ordinance (Cap. 10).


Hong Kong courts generally take a liberal approach to the recognition and enforcement of foreign judgments.

Only when the judgment of a foreign court is inconsistent with a previous decision of a competent Hong Kong court concerning proceedings between the same parties, the foreign judgment would not be considered final and conclusive.

Where there are local proceedings pending between the same parties concerning the same issue, the Hong Kong courts will decide whether the foreign judgment can be said to be final and conclusive on the issue.

3. the judgment is for a fixed sum of money (and is not in the form of a penalty or tax).

Enforcement under common lawOnce a foreign judgment is recognised under common law, it is prima facie enforceable as any other judgment of the Hong Kong court.


Under common law, if the judgment fulfils the requirements for recognition, Hong Kong courts will accept jurisdiction for recognition and enforcement of a foreign judgment.

As far as the jurisdiction of the foreign court is concerned, a judgment creditor must prove that the foreign judgment is a judgment in personam. In other words, Hong Kong courts will enforce a foreign judgment in the following cases: ■ where the defendant is a subject of the foreign country in

which the judgment has been obtained;■ where the defendant was resident in the foreign country

when the action began;■ where the defendant in the character of plaintiff has

selected the forum in which he or she is afterwards sued;■ where the defendant has voluntarily appeared; and ■ where the defendant has contracted to submit him or

herself to the forum in which the judgment was obtained.


In the context of common law, a foreign judgment is recognised only to the extent that it is a proof for the payment of a liquidated sum of money on which judgment can be given directly by the Hong Kong courts. Where a foreign judgment has been success-fully sued upon under common law, it can then be enforced in Hong Kong. The method of enforcement will vary depending on the type of enforcement desired (see question 4.1 below).


Procedure for recognition under common lawUnder common law, a foreign judgment is considered as a debt between the parties and therefore an action can be brought upon it to prove that it is final and conclusive between the parties.1. The judgment creditor of the foreign judgment commences

civil proceedings in Hong Kong by way of a writ, which can be generally endorsed or include a statement of claim setting out the details of the debt arising from the foreign judgment.

The writ must then be served on the defendant. If the defendant either (a) does not state its intention to defend within 14 days, or (b) does not provide a defence within 28 days, the plaintiff is entitled to apply for a default judg-ment. If the defendant seeks to challenge the judgment creditor’s claim, the judgment creditor could apply for a summary judgment, i.e. for judgment without a full trial, on the basis that the defendant has no defence to the claim of enforcement.

2. If a judgment (default or otherwise) is obtained, the judg-ment creditor can proceed with the enforcement of the judgment in the same way as any Hong Kong judgment.


115Gall


Recognition under the FJREOThe FJREO follows a statutory registration scheme based on a reciprocal arrangement for recognition and enforcement with countries enlisted in question 1.1. For a foreign judgment to be recognised under the FJREO:1. the judgment must be from a superior court, i.e. a court

with unlimited jurisdiction in civil and criminal matters;2. the judgment must not have been wholly satisfied;3. if the judgment has been satisfied in part as at the date

of registration, the judgment shall be registered only in respect of the balance remaining payable at that date;

4. the judgment must be enforceable by execution in the country of the original court;

5. the judgment must be final and conclusive between the parties; and

6. the judgment must be for a sum of money.

Recognition under the MJREOFor a Mainland judgment to be registrable under the MJREO:1. the judgment must have been handed down by a desig-

nated court, being the Supreme People’s Court, a Higher People’s Court, an Intermediate People’s Court, or a recog-nised Primary People’s Court;

2. the judgment must be in relation to a commercial contract and should have been given on or after the commence-ment of the MJREO;

3. the parties to the commercial contract should have had a written agreement made on or after the commencement of the MJREO specifying that the courts in Mainland China would have exclusive jurisdiction over the dispute;

4. the judgment must be enforceable in Mainland China;5. the judgment must be final and conclusive between the

parties; and6. the judgment must be an order for a definite sum of money

(other than taxes, penalties or fines).

Upon registration, the foreign judgment or the Mainland judg-ment can be enforced by the usual procedures available to judg-ments of Hong Kong courts (see question 4.1 below).

Under section 4(1) of the FJREO, a judgment creditor has six years from the date of the foreign judgment to have it registered in Hong Kong.

Under section 7(1) of the MJREO, a judgment creditor has two years from the last day of the period specified for perfor-mance of the judgment if it is so specified, or from the date the judgment takes effect in any other case, to have the judgment registered in Hong Kong.


Yes, there is a difference between the recognition and enforcement of judgments. Recognition does not automatically lead to enforce-ment of the foreign judgment and a judgment creditor must take additional steps for enforcement. Once the judgment is recognised and challenges are successfully resisted, it can be given effect to by enforcement procedures. Neither the FJREO nor the MJREO define registration and enforcement, yet these are understood as two distinct stages relating to a foreign judgment in Hong Kong.

In the context of both the FJREO and the MJREO, recogni-tion means that a foreign judgment is given the same force and effect as if the foreign judgment were a judgment of the Hong Kong courts.


Under common law, since a foreign judgment is sued upon as a fresh cause of action, a prior judgment on the same or a similar issue between different parties may have a bearing on the recog-nition and enforcement of the judgment. There is unlikely to be any effect on the recognition and enforcement in such a scenario under the FJREO or the MJREO provided the foreign judg-ment is final and conclusive.


The Hong Kong courts will normally not look at the underlying merits of the foreign judgment as long as all of the other require-ments set out in questions 2.3 and 3.1 are met. It is important that the judgment is not against public policy or the notions of natural justice of Hong Kong.


No. The laws of Hong Kong apply uniformly across Hong Kong.


Under common law, a judgment creditor has 12 years from the date on which the foreign judgment became enforceable to commence fresh proceedings in Hong Kong to recover the judgment sum as a debt. It must be noted that the court will not grant any arrears of interest in respect of any judgment after six years from the date on which the interest became due.



Under the FJREO, a ‘judgment’ means: (i) a judgment or order given or made by a court in any civil proceedings; or (ii) a judg-ment or order given or made by a court in any criminal proceed-ings for the payment of a sum of money in respect of compen-sation or damages to an injured party. However, it does not include overseas judgments given in breach of an agreement for the settlement of disputes.

The MJREO defines a Mainland judgment to mean a judg-ment, ruling, conciliatory statement or order of payment in civil or commercial matters that is given by a designated court, being the Supreme People’s Court, a Higher People’s Court, an Intermediate People’s Court, or a recognised Primary People’s Court.


116 Hong Kong


1. the requirements for registration were not met;2. the foreign court had no jurisdiction;3. the judgment debtor did not receive notice of the foreign

proceedings;4. the judgment was obtained by fraud;5. the enforcement of the foreign judgment is contrary to

public policy in Hong Kong; or6. the rights under the judgment are not vested in the person

by whom the application for registration was made.

Under the MJREOA judgment debtor can apply to set aside a Mainland judgment registered under the MJREO on the following grounds:1. the requirements for registration were not met or the judg-

ment has been registered in contravention of the MJREO;2. the choice of Mainland court agreement was invalid unless

it has been declared as valid by the Mainland court;3. the judgment has been wholly satisfied;4. the courts in Hong Kong have exclusive jurisdiction;5. the judgment debtor was either not adequately summoned

or was not given sufficient time to defend as per the laws of the Mainland;

6. the judgment was obtained by fraud;7. enforcement is contrary to public policy;8. a judgment or award on the same cause of action between

the parties has been obtained outside Hong Kong and has been recognised or enforced in Hong Kong; or

9. the judgment has been reversed or otherwise set aside pursuant to appeal or retrial in the Mainland.

Under both, the FJREO as well as the MJREO, the registration of a judgment can be challenged within the time period spec-ified in the order registering the judgment. Such time period may be extended by the court and the application for setting aside must be made within this period.

4 Enforcement


Once a foreign judgment becomes a Hong Kong judgment, the normal enforcement routes become available to the judgment creditor. This can be done in several ways: 1. a charging order over land or securities;2. garnishee proceedings, which require a third party who

owes money to the judgment debtor to pay the judgment creditor;

3. an examination order against the judgment debtor, who will be cross-examined on oath about the whereabout of his or her assets;

4. a writ of fieri facias against any movable property; or5. winding-up or bankruptcy proceedings, often considered

as a last resort.

5 Other Matters


Possibility of enforcing non-monetary foreign judgments under common lawIn Jiang Xi An Fa Da Wine Co. Ltd. v. Zhan King [2019] HKCFI

Under both the regimes, the foreign judgment needs to be registered before it can be enforced. Enforcement implies giving effect to the relief or remedy by way of the enforcement mechanisms available (see questions 3.3 and 4.1 below).


Under the FJREOA foreign judgment can be recognised under the FJREO by following the procedure below:1. the judgment creditor of the foreign judgment applies ex

parte to the Court of First Instance to register the foreign judgment, which should be supported by an affidavit and a draft order setting out the basis upon which the require-ments under the FJREO are met (see question 3.1 above);

2. if the application and other documents are in order, the court will register the foreign judgment;

3. the judgment creditor must serve the notice of registration on the judgment debtor;

4. the judgment debtor may attempt to set the registration aside (the grounds are set out in question 3.4 below); and

5. if the registration is not set aside within the specified time (see question 3.4 below), the judgment creditor may proceed with the enforcement of the registered foreign judgment.

Under the MJREOA Mainland judgment can be recognised under the MJREO by following the procedure below:1. the judgment creditor of the Mainland judgment is

required to apply ex parte to the Court of First Instance for registration of the judgment. The application should be supported by an affidavit exhibiting the following:■ a sealed copy of the Mainland judgment;■ duly authenticated copy of the choice of Mainland

court agreement;■ a certification from the Mainland court that the judg-

ment is final and conclusive between the parties; and■ a draft order setting out the basis upon which the require-

ments under the MJREO are met (see question 3.1 above);2. if the application and other documents are in order, the

court will register the foreign judgment;3. the judgment creditor must serve the notice of registration

on the judgment debtor;4. the judgment debtor may attempt to set the registration

aside (the grounds are set out in question 3.4 below); and5. if the registration is not set aside within the specified time,

the judgment creditor may proceed with the enforcement of the registered foreign judgment.

If the judgment creditor seeks to issue execution under the FJREO or the MJREO, an affidavit of service of the registered judgment and any other order made by the Hong Kong court is required to be produced before the Registrar. A judgment may be enforced by any of the means available for enforcement of a Hong Kong judgment (see question 4.1 below).


Under the FJREOA judgment debtor can apply to set aside a foreign judgment registered under the FJREO on the following grounds:


117Gall



1. In straightforward cases, an application under common law takes around six to 12 months. Under the FJREO, the process takes around two to four months, if uncontested.

2. The relevant provisions in the Rules of the High Court must be adhered to.

3. Affidavits in support of recognition under the FJREO should include any prior challenges to jurisdiction and dismissal of the same. Similarly, if a party has submitted to the jurisdiction of a foreign court without challenge, this should also be noted in the affidavit to strengthen the application.

4. If matters become contested, a judgment creditor may be well advised to take out an additional application for secu-rity for costs or an order that interim payment be made in court to safeguard the judgment creditor’s interests pending contested litigation in Hong Kong.

2411, the Court of First Instance observed that although the common law prohibition on the recognition and enforcement of non-monetary foreign judgments has not been contested in Hong Kong, given the global change in position, it is time to reconsider the prohibition. This opens doors for an inter-esting change that may be brought about in the enforcement of non-monetary foreign judgments under the common law regime.

Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region, 18 January 2019 (the “Arrangement”) Hong Kong and China have periodically entered into arrange-ments for mutual legal assistance in civil and commercial matters. The Arrangement seeks to provide greater clarity and certainty for recognition and enforcement of judgments in a wider range of civil and commercial matters.

The Arrangement covers monetary as well as non-monetary relief. It also sets out jurisdictional grounds for the purpose of recognition and enforcement as well as grounds for refusal of recognition and enforcement. For the Arrangement to take effect, local legislation is yet to be implemented in Hong Kong.


118

Nick Gall is Senior Partner and Head of Litigation at Gall. He has acted for publicly listed companies, senior employees, the Hong Kong Government, the US Government, major international banks and corporations throughout the world.Nick has extensive experience in dealing with multi-jurisdictional fraud and international asset tracing litigation. His work often requires making cross-border applications, freezing/gagging applications, urgent injunctive relief, the examination of senior executives/bank officers and recovery and enforcement proceedings generally. He also has extensive experience in forcing banks and financial institutions to provide information to assist in tracing and recovery of funds and fending off vulture funds in respect of international sovereign debt recoveries.Nick is consistently ranked as a top-tier lawyer in the major legal guides.

Gall3/F Dina HouseRutonjee Centre11 Duddell StreetCentralHong Kong

Tel: +852 3405 7666Email: [email protected]: www.gallhk.com

Gall is a leading independent Hong Kong law firm focusing primarily on dispute resolution. We specialise in handling highly complex disputes, many of which involve multi-jurisdictional litigation.Our partners all come from international firms and have practised in Hong Kong or overseas for many years. They have a wealth of experience in a wide variety of litigation, mediation and arbitration. We use a partner-led, team-based approach to complex litigation, drawing upon the legal and linguistic skills of solicitors with different areas of expertise. As an independent firm, we are regularly referred work by law firms in other countries. We work closely with our clients to help them to understand Hong Kong’s legal and business culture, and remain vigilant in finding solu-tions that will most readily match a client’s business objectives.

www.gallhk.com


Hong Kong

Ashima Sood joined Gall in September 2014. She has wide-ranging experience in commercial litigation, arbitration and dispute resolution, focusing on issues involving breach of contract, joint venture and shareholders’ disputes, asset tracing and Mareva injunctions, SFC and ICAC investigations, enforcement of judgments, as well as tort and negligence claims.Ashima has also handled an array of matters relating to default of payment and commercial fraud, assisting liquidators and creditors in insolvency and bankruptcy matters.


Tel: +852 3405 7628Email: [email protected]: www.gallhk.com

Kritika Sethia joined the firm in July 2019 as a Legal Analyst with previous experience in civil and commercial litigation as well as mergers and acquisitions. She is qualified as an Advocate under the Indian Advocates Act, 1961. During her experience as a litigator in India, she has dealt with matters in the area of contract laws, company laws, property law, environmental law as well as family laws. She has experience in litigation, drafting and mediation.Prior to litigation, Kritika worked at Luthra and Luthra Law Offices, Mumbai, a leading Indian law firm. As an Associate in the mergers and acquisitions team, she has conducted and prepared due diligence reports in the pharmaceutical, quick-service restaurants as well as energy and power sectors. She has experience in the area of drafting of agreements as well.


Tel: +852 3405 7654Email: [email protected] URL: www.gallhk.com


Chapter 20 119

Italy

Portolano Cavallo

Italy


Martina Lucenti

Filippo Frigerio

Micael Montinari

Claudia Rivieccio

Bilateral conventions on mutual judicial assistance.

Argentina, Brazil, China, Egypt, Kuwait, Lebanon, Moldova, Morocco, Russia, Tunisia and Turkey.

Section 3.

2 General Regime


Absent any applicable special regime, recognition and enforce-ment of non-EU foreign judgments are governed by Law no. 218/1995 (“Law 218/1995”) and the provisions of the Civil Procedure Code (“CPC”).


Under the Italian legal system, a “judgment” capable of recognition and enforcement is any judgment, whatever it may be called including a decree, order or decision, which results in the determination, consti-tution, modification or extinction of rights, capacities or interests.

To be considered as such, the judgment shall be in a written form, duly issued by a judicial body and shall be final (i.e. it must no longer be subject to appeal or amendments).


Unless bilateral or multilateral agreements are applicable, under Section 64 of Law 218/1995, a foreign court judgment can be recognised in Italy if the following requirements are met: (i) The court that issued the decision should have had the

jurisdiction to decide on the case, in accordance with Italian laws.

(ii) The first claim deed should have been correctly served on the defendant in accordance with the other State rules and the defendant’s defensive rights must be respected.

(iii) The parties should have appeared before the court or the absentia of one of them should have been declared in accordance with the foreign country law.

(iv) The decision must be final in accordance with the foreign law.

(v) The foreign decision must not conflict with an Italian court’s final decision.

1 Country Finder





Law no. 218 of 31 May 1995.

All jurisdictions for which no EU, bilateral or multilateral conven-tion is applicable.

Section 2.

Sections 474–632 of the Italian Civil Procedural Code.

All jurisdictions for which no EU, bilateral or multilateral conven-tion is applicable.

Section 2.

Multilateral conventions.

State parties to multi-lateral conventions including:■The European Free Trade Association Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 2007 (Lugano Convention).■The Hague Convention of 30 June 2005 on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.■The Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956.■The Convention concerning International Carriage by Rail of 9 May 1980.

Section 3.


120 Italy


The Court of Appeal’s decision declaring or denying the foreign judgment that is recognised and enforceable can be chal-lenged before the Supreme Court, on limited grounds, within 60 days of service of the relevant decision.

Once the judgment has been recognised, the enforcement phase can begin. This phase includes the following steps: (i) Apposition of the execution order formula.(ii) Serving on the debtor the enforceable title (i.e. the judg-

ment with the execution order formula) and the “atto di precetto” (i.e. a specific warning of payment announcing the will to proceed with the execution in accordance with the juridical decision).

(iii) Execution. (iv) Selling of the distrained goods and awarding of the sums

(or awarding of the sums distrained to the third creditor of the debtor, e.g. banks or employers).


The judgment debtor may challenge recognition of non-EU judgments when the judgment does not comply with one or more of the requirements for recognition set forth by Section 64 or 66 of Law 218/1995 (see question 2.3) within an ad hoc proceeding before the competent Court of Appeal (see Section 67 of Law 218/1995).

In the enforcement proceeding, the defendant can challenge:(i) the right to proceed with enforcement or the existence

of the creditor’s right to proceed with enforcement; by appeal against enforcement (ITA: opposizione all’esecuzione) (Sections 615 and 616 of the CPC); or

(ii) procedural errors (i.e. the legality of the documents involved in the enforcement procedure) by appeal against enforceable acts (ITA: opposizione agli atti esecutivi) (Sections 617 and 618 of the CPC).


Foreign judgments relating to the capacity of persons, the exist-ence of family relationships and personality (Section 65 of Law 218/1995) as well as voluntary jurisdiction judgment (Section 66) are automatically effective in Italy if:(i) The measure has been issued or produces effects in the

State which would have jurisdiction under the criteria laid down in Law 218/95.

(ii) Essential rights of defence have been respected.(iii) There is no breach of public policy principles.


As a general rule, a foreign judgment conflicting with another final and binding judgment issued by an Italian court shall not be recognised in Italy (see Section 64(e) of Law 218/1995).

Likewise, under Section 64(f) of Law 218/1995, foreign judg-ments shall not be recognised in Italy when an Italian proceeding involving the same parties exists and the same dispute – initiated before the foreign proceedings – is still pending.

(vi) No proceedings are pending before an Italian court between the same parties and on the same dispute, which were initiated before the foreign proceedings.

(vii) There is no conflict with Italian public policy principles.


Italian courts shall have jurisdiction when the judgment to be recognised must produce its effects in Italy. In this case, the competent court is the one of the place where enforcement should take its effect (for instance, if the recognition of the judg-ment aims at the return of real estate, then the application must be submitted to the Court of Appeal of the court where the real estate is located).


Yes, in the Italian legal system, recognition and enforcement are different concepts.

Recognition allows the foreign judgment to be introduced into the Italian legal system, with the same effects it has in the original jurisdiction.

While for some types of judgments (e.g. declarative judgments) recognition may be enough to satisfy the rights of the winning party, sometimes, to satisfy the party’s interest, compelling meas-ures are required. This is where enforcement comes into play.

Enforcement, indeed, is aimed at coercively obtaining a prac-tical result equivalent to that which would be obtained if the debtor had fulfilled his obligations. The enforcement proce-dure is carried out through the intervention of public bodies and under the supervision of a judge who verifies compliance with the procedural rules laid down by law.


Under Section 30 of Legislative Decree no. 150 of 2011, disputes concerning the recognition of foreign judgments and volun-tary jurisdiction measures referred to in Section 67 of Law 218/1995 are governed by the summary procedure provided for in Sections 702 et ff. of the CPC.

In a nutshell, to obtain recognition of a foreign judgment, the applicant shall file its petition before the Court of Appeal of the district of the place of enforcement. Along with the petition, the applicant shall file: (i) A certified copy of the judgment, duly apostilled or legal-

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.

(ii) A certified translation of the judgment into Italian.Following receipt of the petition, the court schedules the date

of the hearing for the parties’ appearance and discussion and 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). Under penalty of forfeiture, at this stage the defendant shall raise any possible objection to the recognition of the foreign judgment.

The court is empowered to direct the proceedings in quite a flexible way with broad powers also in respect to potential evidentiary issues, always ensuring the respect of due process and equitable treatment of all parties.


121Portolano Cavallo


other Contracting States. Any interested party who raises 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, apply for a decision that the judgment be recognised. The Convention also identifies a number of other situations in which recognition and enforcement may be refused (e.g. if the recognition of the judgment is manifestly contrary to public policy).

(ii) Hague Convention of 30 June 2005 The enforcement regime included in the 2005 Hague

Convention only applies in the event of a judgment deliv-ered by a court with jurisdiction based on an exclusive forum clause within the specific meaning of the convention. In this context, the contracting parties are required to recognise and enforce judgments given by the designated court. However, they may postpone or refuse recognition or enforcement if an appeal against the judgment has been lodged in the State of origin or if the time limit for an 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 was obtained by fraud).

Bilateral Convention(iii) Italy – Socialist Republics (Russia) Convention of 25

January 1979 In 1979, Italy and the USSR entered into the Convention on

judicial assistance in civil litigation (still in force between Italy and Russia), under which a Russian court’s judgment is recognised in Italy, provided that: (i) it is final and no longer appealable; and (ii) the Russian court has jurisdic-tion, in accordance with the criteria set out in Section 24 of the 1979 Convention.

According to the combined provisions of Sections 13 and 25 of the 1979 Convention, an Italian court can refuse to recognise the foreign judgment if: (a) it can harm national security or national sovereignty; (b) it infringes the Italian fundamental legal principles; (c) the defendant was unaware of the proceeding due to a late or void service to him/her or to his/her representative; (d) the Italian court has already adopted a final ruling on the same subject matter; (e) the same suit is already pending before the court where the recognition is requested; and (f ) the same suit falls within the exclusive jurisdiction of Italian courts.

(iv) Italy – Brazil Convention of 17 October 1989 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 to a matter which does not fall within the exclusive juris-diction of the Italian State or of a third State under Italian law or under a treaty between Italy and a third State; (c) 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 adopted a final ruling on the same subject matter and no judgment has been delivered by the judicial authorities of the requested party on the same subject matter between the same parties.


Although this is not specifically mentioned in the multilateral or

In case the foreign procedure is initiated first, the Italian court may suspend the Italian pending procedure when the judgment resulting from the foreign procedure meets the requirements for recognition (see Section 7 of Law 218/1995).


The existence of a conflicting local law or prior judgment on the same or a similar issue between different parties is not relevant for the purposes of recognition of a foreign judgment.


The law applied by the foreign judgment, even if it is country law, has no relevance in the recognition and enforcement process since it does not involve an assessment on the merits.


No, the rules and procedures governing recognition and enforcement as laid down by Law 218/1995 and the CPC apply equally on the entire territory of the Italian Republic.


Since recognition of foreign judgments is considered a declar-atory process, a party’s entitlement to obtain recognition of a foreign judgment is not subject to any limitation periods.

As for enforcement, instead, the relevant statute of the limita-tion period is governed by the lex causae applicable to the dispute, irrespective of the longer or shorter terms provided by the law of enforcement (i.e. Italian law). If the lex causae is Italian law, then the applicable limitation period would be 10 years running from the issuing of the judgment (Section 2953 of the Italian Civil Code).



As Italy is a contracting party to several international and bilat-eral conventions, the following section will analyse the most frequently applied ones.

Multilateral Convention(i) Lugano Convention Under the Lugano Convention, judgments given in a

Contracting State shall be automatically recognised in the


122 Italy


(e) An official translation into the language of the requested party of the documents referred to at the previous letters.


Unless exceptions are provided for in individual bilateral agree-ments, the ground on which recognition of a foreign judgment may be challenged are analogous to those provided for in the general regime of Law 218/95. In other words, recognition of a foreign judgment may be challenged if the foreign judgment does not comply with the following requirements:(i) The judgment was issued by an authority having jurisdiction.(ii) The defendant was regularly summoned under the law of

the place where the proceedings took place and the essen-tial rights of the defence were not violated; or its default was regularly declared.

(iii) The judgment is final and binding in the country of origin.(iv) The judgment is not contrary to another final judgment

issued by an Italian court.(v) There is no pending trial in an Italian court for the same

subject matter and between the same parties that started before the foreign trial.

(vi) The recognition does not produce effects that are contrary to public policy.

4 Enforcement


The enforcement procedure is governed by Section 474 et ff. of the CPC and it is aimed at satisfying the creditor’s claim by the coercive realisation of a practical result equivalent to that which would have resulted from the debtor’s voluntary performance.

Overall, monetary judgment may be enforced through attach-ment of all debtor’s movable and immovable property and credits. Indeed, the Italian legal system handles different types of enforcement:(i) Movable asset enforcement: concerns the movable assets

owned by the debtor, which are forcibly taken from the owner by attachment in order to satisfy the creditor with their sale or assignment.

(ii) Enforcement against third parties: concerns the debtor’s receivables from a third party as well as the debtor’s assets that are in the possession of a third party.

(iii) Real estate enforcement: concerns the debtor’s real estate or real estate rights.

(iv) Specific form of enforcement: may relate to the delivery of a movable asset or the release of real estate, as well as the fulfilment of obligations to do or not to do.

Further, under Italian law, certain assets may not be subject to enforcement since they are functional to the exercise of certain debtor’s rights recognised as fundamental. For instance, the following cannot be subject to enforcement under any circum-stances (Article 514 of the CPC):(i) Goods declared non-distrainable by special laws.(ii) Sacred goods or the ones necessary for worship activities.(iii) Wedding rings, clothes, beds, tables and chairs used for

having meals, wardrobes, chests of drawers and so on.(iv) Books, tools and goods that are essential for the job, the

business, arts and crafts of the debtor.

bilateral conventions to which Italy is a party, recognition and enforcement of foreign judgments are always different activities (see answer to question 2.5).


Multilateral Convention(i) Lugano Convention Under the Lugano Convention, foreign judgments are

automatically recognised without any special procedure. As for the enforcement procedure, at first, the creditor has

to apply to the competent court for the judgment to be declared enforceable. Once certain formalities provided for in the Lugano Convention (Sections 53, 54 and 55) have been completed, the court must declare the judgment enforceable. The decision on the application for enforcea-bility of the judgment is served on the parties concerned.

Following the service of the decision, the parties concerned may as a rule challenge it within one month (two months if the addressee is not domiciled in the country of enforce-ment). For example, the foreign debtor may oppose enforcement by invoking one of the grounds provided for in Sections 34 and 35 of the Convention.

(ii) Hague Convention of 30 June 2005 Under the Hague Convention, the party seeking recog-

nition or enforcement must submit before the competent court a request including: (a) A complete and certified copy of the judgment. (b) The exclusive choice-of-court agreement, a certified

copy thereof or other evidence of its existence.(c) If the judgment was given in default of appearance, the

original or a certified copy of a document.(d) Any document which establishes the enforceability or,

where appropriate, enforceability of the judgment in the State of origin.

(e) In the case provided for in Section 12 of the Convention, a certificate from a court in the State of origin attesting that the court settlement has, in whole or in part, the same enforceable effectiveness as a decision in the State of origin.

Bilateral Convention(iii) Italy – Socialist Republics (Russia) Convention of 25

January 1979 Decisions on recognition shall be taken by the Tribunals of

the contracting party in whose territory the decision is to be recognised and enforced.

The application for recognition shall be submitted to the foreign Tribunal of first instance, which shall forward the application to the Tribunal responsible for the deci-sion. The application may also be submitted directly to the Tribunal where the decision is to be enforced.

The form of the application and the information which must be contained therein shall be determined by the law of the State in which the judgment is to be enforced.

(iv) Italy – Brazil Convention of 17 October 1989 Under the Italy – Brazil Convention, the creditor has to

apply to the competent court, by submitting:(a) A certified copy of the full text of the decision.(b) A certificate of the final judgment.(c) A certified copy of the summons or a document estab-

lishing that the defendant has been duly summoned in default of appearance.

(d) A document establishing that the person legally inca-pable was duly represented.


123Portolano Cavallo



Generally speaking, before initiating the recognition and enforcement procedure it would be appropriate to make sure that: (i) all the documents which will be lodged with the court are translated; and (ii) the at-issue judgment satisfies the require-ments (in form and substance) to be recognised and enforced (particular attention should be paid with reference to recogni-tion of foreign judgments concerning the matter of family rela-tionships: there are several court precedents which contrast with the public policy principles; for instance, in the field of the use of some medically assisted procreation techniques).

(v) Arms and stuff that the debtor holds for fulfilling a public service.

(vi) Merit decorations, letters, registers and family writings, manuscripts, except if they are part of a collection.

Please note that other assets may not be subject to enforce-ment in specific circumstances (see Sections 515 and 516 of the CPC).

5 Other Matters


In May 2019, the Court of Cassation ruled against the recogni-tion of a foreign judgment that established a parent-child rela-tionship between a child born abroad through surrogacy and a parent with Italian citizenship.

The Court of Cassation stated that the recognition of that judgment was precluded by the prohibition of maternity surro-gacy which can be qualified as a principle of public policy as it protects fundamental values, such as the human dignity of the pregnant woman and the adoption institution.


124

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 CavalloPiazza Borromeo, 1220123 MilanItaly

Tel: +39 02 722 341Email: [email protected]: portolano.it/en

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 regu-latory issues.In all these areas, Portolano Cavallo is recognised by multiple legal Italian and international rankings and awards.

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 CavalloPiazza Borromeo, 1220123 MilanItaly



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 CavalloVia Rasella, 15500187 RomeItaly


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 CavalloVia Rasella, 15500187 RomeItaly




Chapter 21 125

Japan

Mori Hamada & Matsumoto Yoshinori Tatsuno

Yuko Kanamaru

Japan

private relationships of the parties under a guarantee of proce-dural due process, regardless of the name, procedure or format adopted by the foreign court. See Supreme Court, 28 April 1998, Heisei 6 (O) No. 1838 (“Sup. Ct. 1998”).


Requirements for recognition. Article 118 of the CCP sets out the following requirements for a final and binding foreign judg-ment to be effective (i.e., to be recognised) in Japan:(i) the jurisdiction of the foreign court is recognised under laws, regula-

tions, conventions or treaties;(ii) the defeated defendant has received a service (excluding a service by

publication or any other service similar thereto) of summons or order 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 to public policy in Japan; and

(iv) a mutual guarantee exists. The requirement under Article 118(i) is called “indirect jurisdic-

tion”. This is “indirect” in the sense that the Japanese court will examine the foreign court’s jurisdiction over the case for which the foreign judgment at issue was rendered and is distinct from “direct jurisdiction” where the Japanese court will determine whether the Japanese court itself has jurisdiction over the case. The language of Article 118(i) of the CCP is not clear whether the phrase “laws [and] regulations” means laws and regulations of Japan or those of the country where the foreign judgment was rendered. Prior to the amendment of the CCP in 2012 which added the provisions regarding the Japanese court’s international jurisdic-tion (i.e., Articles 3-2 to 3-12 of the CCP), Sup. Ct. 1998 ruled that in determining the existence of indirect jurisdiction, it is appro-priate to refer to the rule of reason, taking into account the prin-ciples of fairness among the parties and the pursuit of appropriate and swift judgment. More 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 circumstances of the case and referring to the relevant provisions of the CCP. Although there is still no established conclusion on this issue after the amend-ment of the CCP in 2012, it is clear that considering the ruling of Sup. Ct. 1998, a Japanese court will at least refer to and consider Articles 3-2 to 3-12 of the CCP when determining the indirect jurisdiction of a foreign court.

The “service” required under Article 118(ii) of the CCP need not be the service under the Japanese civil procedure, but the service must be done such that (a) the defendant can actually be

1 Country Finder





None N/A N/A

2 General Regime


The Code of Civil Procedure (Act No. 109 of 1998, the “CCP”) and the Civil Execution Act (Act No. 4 of 1979, the “CEA”) are the primary legal sources which provide for the requirements and the procedures for recognising and enforcing a foreign judgment in Japan. Judicial precedents function as a secondary legal source which construes and complements the legislative sources.

Japan is not a party or a signatory to any bilateral or multi-lateral treaties for the reciprocal recognition and enforcement of foreign judgments, including the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters.


Pursuant to Article 118 of the CCP and Article 24, section 5 of the CEA, a foreign judgment must be “final and binding” for it to be recognised and enforced in Japan. Therefore, interim reliefs such as provisional attachments or provisional dispo-sitions which are rendered by a foreign court are not enforce-able per se. Specific performance and permanent injunction are enforceable as long as they are final and binding and the other applicable requirements are satisfied. Please note that Article 24, section 5 of the CEA has been renumbered from Article 24, section 3 after the recent amendment of the CEA came into force on 1 April 2019.

A foreign “judgment” under Article 24 of the CEA refers to any final judgment rendered by a foreign court regarding the


126 Japan


or business office; or (b) by the domicile of its representative or any other principal person in charge of its business if it has no business office or other offices in Japan. See Article 4, section 4 of the CCP.

As noted above, even when there is no general venue of the foreign judgment obligor in Japan, if the subject matter of the claim or the seizable property of the judgment obligor is located in Japan, the Japanese district court which has jurisdiction over the location of the property has the jurisdiction over the action seeking the enforcement of the foreign judgment. For example, when the claim of a foreign judgment is regarding a real prop-erty in Japan, the district court which has jurisdiction over the place of that real property shall have the jurisdiction over the action seeking the enforcement of the foreign judgment. Also, if a foreign judgment obligor has a seizable real property or a bank account in Japan, the district court which has jurisdiction over the location of the real property or the bank office has the jurisdiction over the action seeking the enforcement of the foreign judgment.


The legal effects of the recognition of a foreign judgment are 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 foreign judgment is recognised without any specific procedure as long as it satisfies the requirements of Article 118 of the CCP.

On the other hand, the legal effects of the enforcement of a foreign judgment are considered to be the authorisation to execute the foreign judgment in Japan. To enforce a foreign judgment in Japan, it is necessary to obtain an execution judgment from a Japanese court and then file a petition for compulsory execution based on that execution judgment, although the requirements for enforcement and for recognition actually overlap.


As explained in question 2.5 above, a foreign judgment is recog-nised without any specific procedure in Japan, as long as it satis-fies the requirements of Article 118 of the CCP.

For enforcement, the judgment creditor who wants the execu-tion of a foreign judgment in Japan must first file a lawsuit, before a competent district court of Japan, against the judgment obligor to seek an execution judgment. See supra, question 2.4 regarding jurisdiction and question 2.3 for the requirements for an execution judgment. If an execution judgment for a foreign judgment is issued and becomes final and binding, the judg-ment creditor may file a motion for compulsory execution with the competent execution court, where the compulsory execu-tion shall be carried out based on the foreign judgment and the execution judgment therefor. See Article 22(vi) of the CEA.


The recognition/enforcement of a foreign judgment can be chal-lenged if it does not satisfy any of the requirements explained in question 2.3.

As set out in Article 24, section 4 of the CEA, an execution judgment for a foreign judgment will be made without investi-gating whether the content of the foreign judgment is appro-priate. Therefore, the judgment obligor is, as a general rule, not

aware of the commencement of the legal proceedings against him/her, (b) he/she is not prevented from the appropriate exer-cise of the right to defence, and (c) the service complies with applicable conventions or treaties. See Sup. Ct. 1998. In addition, the requirement of service under Article 118(ii) of the CCP can also be satisfied if the unsuccessful defendant has “appeared” in court. The term “appearance” means that the defendant was given the opportunity to defend and actually took measures to defend himself/herself in court, including the submission of a jurisdictional challenge. See Sup. Ct. 1998.

As for the “public policy” requirement under Article 118(iii) of the CCP, the foreign judgment must not be against public policy in Japan. It is generally considered that both the contents of the foreign judgment itself and the underlying facts upon which the judgment is based are to be examined to determine whether they are contrary to public policy in Japan. Typical examples are judgments ordering the payment of gambling debts and those ordering the payment of punitive damages, although the conclu-sions are dependent on the individual facts of each case.

The “mutual guarantee” requirement under Article 118(iv) means reciprocity, which requires that, in the foreign country where the foreign judgment was rendered, the same type of judgment rendered by a Japanese court would be effective under conditions which are not substantially different from those in Japan, i.e., Article 118 of the CCP. See Supreme Court, 7 June 1983, Showa 57 (O) No. 826.

Requirements for enforcement. To enforce a foreign judg-ment, it is necessary to first obtain an execution judgment from a Japanese court under Article 24 of the CEA and then file a peti-tion for compulsory execution based on the execution judgment. However, despite the necessity to comply with those specific procedures, the requirements for enforcement actually overlap with those for recognition. Article 24, section 4 of the CEA clar-ifies that an execution judgment shall be made without investi-gating whether or 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 judg-ment shall be dismissed when: (a) it is not proved that the foreign judgment has become final and binding; or (b) the foreign judg-ment does not satisfy the requirements of Article 118 of the CCP (i.e., the requirements for recognition). Please note that Article 24, sections 4 and 5 of the CEA have been renumbered from Article 24, sections 2 and 3 of the CEA, after the recent amend-ment of the CEA came into force on 1 April 2019.


Article 24, section 1 of the CEA provides that an action seeking an execution judgment for a foreign judgment shall be under the juris-diction of the Japanese district court which has jurisdiction over the location of the “general venue” of the foreign judgment obligor; if there is no such general venue of the foreign judgment obligor in Japan, then it shall be under the jurisdiction of the Japanese district court which has jurisdiction over the location of the subject matter of the claim or the seizable property of the judgment obligor.

If the foreign judgment obligor is a natural person, the “general venue” of the judgment obligor is determined: (a) by the person’s domicile; (b) by the person’s residence (i.e., non-perma-nent place of living) if the person is not domiciled in Japan or his/her domicile is unknown; or (c) by the person’s last domicile in Japan if the person does not have a residence in Japan or his/her residence is unknown. See Article 4, section 2 of the CCP.

If the foreign judgment obligor is a corporation or any other association or foundation, the “general venue” of the judgment obligor is determined: (a) by the location of its principal office


127Mori Hamada & Matsumoto


On the other hand, a foreign judgment may be recognised and enforced even if there is a prior Japanese judgment on the same or a similar issue but between different parties. In Japan, court judgments do not have a binding effect, while they can have a persuasive authority. Thus, a local judgment which conflicts with a foreign judgment, involving different parties, even on 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 action for the enforcement of a foreign judgment on the ground 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.


Even if a foreign judgment purports to apply Japanese law, it will not make any difference to the Japanese court’s approach to recognition and enforcement, and the rules under Article 24 of the CEA and Article 118 of the CCP, as explained above, will apply. However, an action seeking the enforcement of a foreign judgment will not be granted if the application of Japanese law is definitely incorrect such that it may be seen as contrary to public policy in Japan.


There are none.


An action for the enforcement of a foreign judgment will be time-barred after 10 years from the date when the foreign judg-ment is rendered.

In this regard, there is no stipulation in the CEA or the CCP regarding the limitation period for the recognition (as stated in question 2.5 above, there are no procedural requirements regarding recognition) or the enforcement of a foreign judgment. However, Article 167, section 1 of the Japanese Civil Code (Act No. 89 of 1887, as amended, the “JCC”) stipulates that all claims will be time-barred after 10 years. This provision is considered applicable to an action seeking the enforcement of a foreign judgment.

Having said that, please note that the new Civil Code, which will become effective on 1 April 2019, expressly stipulates that the limitation period of a claim which has been granted by a judgment and become final and binding is 10 years. See Article 174-2 of the new JCC.



This is not applicable in Japan.

entitled to raise a substantive issue to challenge recognition or enforcement. However, an action seeking an execution judg-ment for a foreign judgment will be dismissed if it does not satisfy the requirements of Article 118 of the CCP. See supra. This means that a judgment obligor can raise a substantive issue by alleging that the content of that foreign judgment is contrary to public policy in Japan. See Article 118(iii) of the CCP.

Article 118(iii) is a very general and vague requirement, which may change with the times. So far, judgments ordering the payment of gambling debts or punitive damages are considered to be contrary to public policy in Japan, but this view may change in the future.


Japan does not have a framework relating to specific subject matters.


For scenario (a), where there is a conflicting Japanese judgment between the exact same parties relating to the same issue, the foreign judgment will not be recognised on the ground that it is contrary to public policy in Japan. See Article 118(iii) of the CCP. There is no Supreme Court judgment but there is a 1977 Osaka District Court judgment on the matter. See Osaka District Court, 22 December 1977, Showa 50 (WA) No. 4257 and Showa 51 (WA) No. 5135 (“Osaka Ct. 1977”). In this case, the Osaka District Court did not grant the peti-tion for the enforcement of a foreign judgment, stating that: “it 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. 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 court proce-dural laws and is ‘contrary to public policy in Japan’ under Article 200(iii) of the Civil Procedural Act [note: now, Article 118(iii) of the CCP] to recog-nise a foreign judgment which conflicts with a Japanese judgment relating to the same issue between the same parties when that Japanese final and binding judgment has already been rendered.”

It is worth noting that, although Osaka Ct. 1977 determined that a foreign judgment which conflicts with a Japanese judg-ment will not be recognised and enforced “regardless of which is first to be brought, to be rendered, or to become final and binding”, there is continuing discussion as to whether this ruling applies to cases where the conflicting Japanese judgment is rendered after the foreign judgment has become final and binding.

In scenario (b), where there are local proceedings pending between the parties, the foreign judgment can be recognised and enforced. In that case, there is no judgment yet in the Japanese proceedings and, therefore, there is no basis to conclude that the foreign judgment conflicts with the results of the Japanese proceed-ings, which is a situation totally different from Osaka Ct. 1997.


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.


128 Japan


the foreign judgment was rendered by the California Superior Court in Orange County but was not served at the correct address of the judgment obligor. Note that this is not an issue regarding service of summons or similar processes under Article 118(i) of the CCP. The Supreme Court held that, if a foreign judgment has become final and binding without providing the judgment obligor with the opportunity to defend under the situ-ation where he/she did not know or was not practically provided with the opportunity to know the contents of the foreign judg-ment even though it was actually possible for him/her to know or have the opportunity to know, the legal procedure in rela-tion to that foreign judgment will be deemed as conflicting with the basic rules and basic concepts of the Japanese legal frame-work and “contrary to public policy in Japan” under Article 118(iii) of the CCP.

Separately, at the end of 2018, Japan objected to service by direct mail under Article 10(a) of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (so-called “Hague Service Convention”). This convention established unified rules on, among other things, cross-border service of process, and Article 10(a) allows a party to send judicial documents by postal channels if the state of destination does not object – regarding such article the Japanese government had not made its position clear. On 21 December 2018, however, it declared objection to this article. With this development, judicial documents, including the complaints and summons, to be served by parties to the lawsuits pending in signatory countries will be required to be made through the Japanese Central Authority.


It is worth noting that there is a 1990 Tokyo District Court judg-ment which ruled that a translation of the service of process is required to be attached, and that the lack of translation is a failure to meet the “service” requirement under Article 118(ii) of the CCP. See Tokyo District Court, 26 March 1990, Showa 62 (WA) No. 12503. Although it is not a Supreme Court deci-sion and is relatively old, it is advisable to follow the decision and attach a translation into a language known to the defendant if there is the possibility that there is a need to enforce a judg-ment in Japan.







4 Enforcement


See question 2.6. When a judgment creditor has obtained an execution judgment that has become final and binding, he/she is entitled to file a motion for compulsory execution with the competent execution court, where the compulsory execu-tion shall be carried out based on the foreign judgment and the execution judgment.

5 Other Matters


On 18 January 2019, the Supreme Court rendered a decision on the recognition and enforcement of a foreign judgment, specifi-cally about “public policy” under Article 118(iii) of the CCP. See Supreme Court, 18 January 2019, Heisei 29 (O) No. 2177. The issue is whether or not the failure to serve the judgment on the defendant is contrary to “public policy” in Japan. In this case,


129


Mori Hamada & Matsumoto

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 & MatsumotoMarunouchi Park Building2-6-1 MarunouchiChiyoda-kuTokyo, 100-8222Japan

Tel: +81 3 6266 8542Email: [email protected]: www.mhmjapan.com

Mori Hamada & Matsumoto (MHM) is one of the largest full-service Tokyo-headquartered international law firms. A significant proportion of the firm’s work is international in nature, including representing clients in cross-border litigation and other dispute resolution proceedings.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; insol-vency/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 Beijing, Shanghai, Singapore, Yangon, Bangkok, and Ho Chi Minh City, and a Jakarta Desk

Yoshinori Tatsuno is a partner at Mori Hamada & Matsumoto who is admitted in Japan and California and has extensive experience repre-senting clients in international disputes and transactions, which include 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 multi-jurisdictional litigations and international arbitrations.

Mori Hamada & MatsumotoMarunouchi Park Building2-6-1 MarunouchiChiyoda-kuTokyo, 100-8222Japan

Tel: +81 3 6266 8785Email: [email protected]: www.mhmjapan.com

(AKSET Law MHM Jakarta Desk). The leading law firm in Thailand, Chandler & Thong-ek Law Offices Limited, integrated its operations with our Bangkok office on 1 January 2017 under the name Chandler MHM Limited. MHM also has domestic offices in Fukuoka, Osaka and Nagoya.

www.mhmjapan.com



Chapter 22130

Korea

Bae, Kim & Lee LLC Yoo Joung Kang

Seong Soo Kim

Korea

foreign court or a judgment acknowledged to have the same force” (Article 217, Paragraph 1 of the KCPA). To be specific, the Supreme Court of Korea has held that the “final and conclu-sive judgment rendered by a foreign court” refers to any kind of adjudication, regardless of the title, which is rendered by a judicial authority in a foreign country with legitimate jurisdic-tion in an adversary procedure concerning the legal relationship between private parties (Supreme Court Judgment, Case No. 2009Da68910 dated 29 April 2010).

To fall under the definition of a final and conclusive foreign judgment regarded as effective as above, among others, each of the following conditions must be met: i. First, the “foreign court” should be a judiciary agency or

organisation having the authority to make determinations concerning the legal relationship between private parties. Agencies or organisations governing administrative or criminal matters are not included.

ii. Second, to be a “final and conclusive judgment”, the judg-ment should be an ultimate conclusion of a case, where ordinary appeal procedures are exhausted such that parties of the case are unable to appeal anymore. Accordingly, interim reliefs or temporary orders, such as provisional attachments or provisional dispositions, issued in the course of a court procedure or to preserve the status quo, are not regarded as being final and conclusive. In the same vein, interlocutory decisions or procedural rulings do not fall under final and conclusive judgments.

iii. Third, the judgment should be made through an adversary procedure. In this regard, the Supreme Court of Korea has held that a confession judgment rendered pursuant to the California Code of Civil Procedure in the US does not constitute a foreign judgment subject to recognition and enforcement in Korea, given that it is a judgment signed and registered by a court clerk without going through the oblig-or’s procedural actions when a creditor files an application to register the obligor’s statement admitting his/her liability (Supreme Court Judgment, Case No. 2009Da68910 dated 29 April 2010).


Article 217, Paragraph 1 of the KCPA is the primary legal source which provides for the requirements to recognise and enforce a foreign judgment in Korea. Each of the conditions stipulated in Article 217 (1) of the KCPA reads as follows: 1. The international jurisdiction of such foreign court is

recognised under the principle of international jurisdiction pursuant to the statutes or treaties of the Republic of Korea.

1 Country Finder





N/A N/A N/A

2 General Regime


Foreign judgments, other than foreign court rulings or decisions in bankruptcy procedures, are primarily governed by Article 217 of the Korean Civil Procedure Act (“KCPA”) for recognition. As to the enforcement of a foreign judgment in Korea, Articles 26 and 27 of the Korean Civil Execution Act (“KCEA”) provide that an execution judgment for a foreign judgment can be issued.

In addition to the above, it is very important to understand that in order to accurately comprehend the actual meaning of the provisions of the law, you must also refer to the relevant court precedents.

Meanwhile, foreign court orders, decisions or any other types of rulings in bankruptcy procedures are separately governed by Part V of the Korean Debtor Rehabilitation and Bankruptcy Act (“KDRBA”). Given the unique jurisprudence established in bankruptcy procedures, and the universal nature affecting all relevant parties with an interest, including creditors or debtors of an insolvent debtor in the procedures, Korean law has special provisions in the KDRBA to deal with bankruptcy procedures in foreign countries.

Accordingly, the general explanations for recognition and enforcement of foreign judgments provided hereunder do not apply to rulings or decisions rendered in bankruptcy procedures of foreign countries. We will have another chance to explore this subject.


It shall be a “final and conclusive judgment rendered by a


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iv. Mutual guarantee means that reciprocity exists between Korea and the judgment-rendering foreign country in recognising and enforcing each other’s judgments. The Supreme Court of Korea ruled that a mutual guarantee is satisfied when, determining as a whole, requirements for recognition and enforcement of foreign judgments between the two countries are not substantially different in material points, without causing significant imbalance (Supreme Court Judgment, Case No. 2002Da74213 dated 28 October 2004).

Existence of a mutual guarantee can certainly be evidenced by a precedent of the foreign country approving a Korean judgment, but this is not a must. A substantial likelihood of approving a Korean judgment is sufficient. For refer-ence, the following is a list of foreign jurisdictions with which mutual guarantees have been determined to exist in Korean courts: the US (New York, California, Minnesota, Oregon, Kentucky, Texas, New Jersey and the Northern Mariana Islands); Canada (Ontario); Germany; the United Kingdom; Argentina; Japan; Australia; Hong Kong; and Taiwan. Conversely, mutual guarantees with Thailand or Denmark were denied in some lower court cases. As for China, it is quite tricky to categorically draw a conclu-sion. A Korean district court once recognised a Chinese court decision in 1999, but a Chinese district court disap-proved a Korean judgment in 2011. Afterwards, another Chinese district court recognised a Korean judgment in 2019. Therefore, in order to conclude such matter, it is necessary to wait for the next Korean court’s decision.

In the meantime, it should be noted that the existence of a mutual guarantee is not universally determined and applied for all types of judgments identically. It is indi-vidually determined by comparing the same kind of judg-ments. For example, the existence of a mutual guarantee in property cases does not lead to the same conclusion for family cases, and the determination for mutual guaran-tees could be differentiated between payment and specific performance orders (Supreme Court Judgment, Case Nos. 2002Da74213 dated 28 October 2004 and 2009Da22952 dated 25 June 2009).

In determining whether the above requirements are satisfied, substantive review on foreign judgments is prohibited (Article 27, Paragraph 1 of the KCEA). However, as shown above, review of foreign judgments (including its reasoning as well as conclusion) is inevitable to the extent necessary for determining whether the foreign judgment is contrary to public policy or social order.


Article 217, Paragraph 1 of the KCPA requires a legitimate juris-diction for the foreign court in light of the principle of interna-tional jurisdiction pursuant to the statutes or treaties of Korea. For international jurisdiction, Article 2, Paragraph 1 of the Act on Private International Law (“APIL”) provides that “[i]n case a party or a case in dispute is substantively related to the Republic of Korea, a court shall have the international jurisdiction. (omitted)”, and Paragraph 2 of the same Article of the APIL stipulates that such international jurisdiction shall be deter-mined in light of jurisdictional provisions of Korean domestic law.

Simply put, the principle of “substantive relation” between the foreign court and parties or disputes controls the determina-tion of this requirement, unless a Korean law or bilateral treaty

2. A defeated defendant is served, by a lawful method, a written complaint or document corresponding thereto, and notification of the date or written order allowing him/her sufficient time to defend (excluding cases of service by public notice or similar), or he/she responds to the lawsuit even without having been served such documents.

3. Approval of such final judgment, etc. does not under-mine sound morals or other social order of the Republic of Korea in light of the contents of such final judgment, etc. and judicial procedures.

4. Mutual guarantee exists, or the requirements for recogni-tion of the final judgment, etc. in the Republic of Korea and the foreign country to which the foreign country court belongs are not far off balance and have no actual differ-ence between each other in important points.

In other words, all the requirements of (i) a legitimate inter-national jurisdiction, (ii) an appropriate service to or actual response by a defeated defendant, (iii) not being in conflict with a public policy or social order of Korea, and (iv) a mutual guar-antee between the judgment-issuing foreign country and Korea, should be met.i. For the requirement of international jurisdiction, please

refer to the explanation at question 2.4.ii. The service to or actual response by a defeated defendant is

a requirement in terms of procedural fairness to ensure an opportunity to defend for the losing party. The legitimacy of service is determined by the law of the foreign country rendering the judgment (Supreme Court Judgment, Case No. 2008Da31089 dated 22 July 2010). And “[the defeated defendant] responds to the lawsuit” refers to a situation where the defendant is deemed to have participated in the proceedings with sufficient opportunities to protect his/her interests by making arguments or motions concerning procedural matters (for example, absence of jurisdiction, failure of service, etc.) or merits of the case, without regard to the defendant’s attendance of hearings (Supreme Court Judgment, Case No. 2015Da207747 dated 28 January 2016).

iii. The requirement that a foreign judgment should not be in conflict with the public policy or social order of Korea is a declaration that a foreign judgment undermining the general sense of justice in Korea cannot be accepted. The “public policy or social order of Korea” refers to the fundamental principles or values inherent in the law of Korea reflecting Korean people’s general sense of justice. It does not simply indicate some specific provisions or statutes. Therefore, violation of individual mandatory provisions of Korean law does not necessarily make a foreign judgment unrecognis-able or unenforceable (Supreme Court Judgment, Case No. 2009Da22952 dated 25 June 2009), although the likelihood of recognition or enforcement would substantially decrease.

For example, the Supreme Court of Korea denied that the differences in asset-dividing methodology in divorce cases or in statute of limitation periods undermine the public policy or social order of Korea (Supreme Court Judgment, Case Nos. 2009Da22952 dated 25 June 2009 and 93Da53054 dated 14 February 1995). On the other hand, a Japanese court judgment denying liabilities of Japanese companies for conscription of Koreans for forced labour during the Japanese colonial period is determined to be against the core values of the Constitution of Korea (Supreme Court Judgment, Case Nos. 2009Da22549 and 2009Da68620 both dated 24 May 2012). Also, punitive damages exceeding the amount of damages generally recognisable in Korea are deemed contrary to the public policy or social order of Korea, whose damage system recognises compensatory damages only (Article 217-2 of the KCPA).


132 Korea



Recognition or enforcement of a foreign judgment could be chal-lenged on the ground that the judgment does not satisfy any of the requirements stipulated in Article 217 of the KCPA as explained at questions 2.2 to 2.4 above. However, since substantive review of a judgment is prohibited (Article 27, Paragraph 1 of the KCEA), it cannot be challenged for reasons related to the merits of the case, such as the foreign court erred in the construction or application of the law. The only and very limited exception is to challenge with regard to the requirement of public policy or social order by alleging that the judgment at issue is in conflict with them.


A special provision was legislated in 2014 governing a judg-ment dealing with damages. Article 217-2 of the KCPA reads as follows:(1) Where a final judgment, etc. on compensation for damages

gives rise to a result being markedly against the basic order of the Acts of the Republic of Korea or international trea-ties entered into by the Republic of Korea, a court shall not approve the whole or part of the relevant final judgment, etc.

(2) Where a court examines the requirements under para-graph 1, it shall consider whether the scope of compensa-tion for damages recognised by a foreign court comprises litigation costs and expenses, including attorney fees and the scope thereof.

Article 217-2 of the KCPA provides statutory grounds for Korean courts to reject a recognition of all or part of a foreign judgment ordering punitive damages which exceed an ordinary amount of compensatory damages. It also codifies a specific example of grounds which are contrary to public policy or social order described in Article 217, Paragraph 1 of the KCPA. A damages judgment does not necessarily fail to get recognition or enforceability just because the damages are labelled as “puni-tive damages”. The title or the name of the damages is not a decisive factor. As the language of Article 217-2, Paragraph 2 of the KCPA shows, Korean courts should substantively examine the nature and scope of the damages ordered to see whether any portion of compensatory damages, such as attorney fees or liti-gation costs and expenses, are incorporated therein. Then, if the damages are determined to exceed the compensatory amount, the exceeded portion, in principle, will not be approved. Also, it should be noted that attorney fees or litigation costs and expenses could be reduced by a reasonable amount, even when they were legitimately spent, if a court determines the amount is unduly high. Meanwhile, in some special fields of law, such as Intellectual Property or Fair Trade, punitive damages have been recently introduced in Korea and its applicability may be expanded to other fields in the future. Thus, the approvable scope of damages judgment exceeding compensatory damages might be widened as a result of a relevant development of the law.


(a) When there is a conflicting Korean judgment between the

grants an exclusive jurisdiction only to Korean courts. The Supreme Court of Korea stands on the same position. It has declared that the jurisdiction of a foreign court is determined by examining the substantive relation between the foreign court and the parties of the case as well as the nature of the case in dispute (Supreme Court Judgment, Case No. 2006Da71908 dated 29 May 2008). One typical standard is a foreseeability of a lawsuit in the foreign country. For example, in a case where a defendant did not operate his/her business in dispute in the foreign country, the Supreme Court of Korea denied the substantive relation between the foreign court and the case, on the ground that the defendant had no reasonable expectation of a lawsuit against him/her in the foreign country (Supreme Court Judgment, Case No. 2012Da21737 dated 12 February 2015).


Enforcement of a foreign judgment is different from recog-nition of the same by just one point; whether an execution judg-ment issued by Korean court is required. An execution judgment is separately needed to enforce a foreign judgment. However, no such official decision is needed to recognise a foreign judgment, which is why it is called an “automatic recognition system”. Nevertheless, it is safe to say that recognition and enforcement of a foreign judgment are substantively the same, given that the requirements for recognition and enforcement overlap in their entirety. Therefore, if a foreign judgment fulfils the require-ments stipulated in Article 217 of the KCPA, the judgment cred-itor is also entitled to obtain an execution judgment by a Korean court when he/she applies for it pursuant to Articles 26 and 27 of the KCEA.

Recognising a foreign judgment is to expand the legal effects (such as res judicata) of the foreign judgment bestowed by the law of the foreign country into Korea. Accordingly, parties of a foreign judgment can make arguments based on the judgment, and Korean courts are barred from making contrary decisions. In doing so, no formal confirmation by a Korean court is neces-sary. On the other hand, enforcing a foreign judgment is to authorise a compulsory execution of the judgment through the procedures stipulated in the KCEA with the aid of enforcement agencies on Korean soil. For enforcement agencies to execute a judgment on properties or assets of a judgment obligor, the KCEA requires a document called an “executive title”, and an execution judgment of a foreign judgment issued by a Korean court constitutes the executive title.


As explained at question 2.5 above, since the automatic recogni-tion regime for a foreign judgment is adopted, no specific proce-dure is needed other than fulfilling the requirements stipulated in Article 217 of the KPCA.

Meanwhile, to enforce a foreign judgment, a separate execu-tion judgment rendered by the Korean court is required pursuant to Articles 26 and 27 of the KCEA. For the execution judgment, a judgment creditor should file a written application to a district court of the relevant forum. The forum is determined by the judgment obligor’s domicile or by the location of the objects of a claim or seizable properties owned by the obligor in case the domicile of the obligor is not established or unknown (Article 26, Paragraph 2 of the KCEA, Articles 3 and 11 of the KCPA).


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As to recognition, the prescription period is not necessary for recognition of a foreign judgment given that recognition does not require any specific procedure.

As to enforcement, there is no stipulation that is specifi-cally applied to enforcement of a foreign judgment. However, Article 165 of the Korean Civil Code provides that the prescrip-tion period for claims established by a judgment shall be 10 years from the date the judgment is rendered final and conclu-sive. Therefore, the aforementioned 10-year time bar is applied to enforcement of a foreign judgment as well, unless it already became unenforceable by the lapse of the statutory period estab-lished in the law of the foreign jurisdiction.



This is not applicable in our jurisdiction.







4 Enforcement


The compulsory sale of real estate or property or any interests thereon is the most common method to enforce a foreign judg-ment. In addition, the collection or transfer of the judgment obligor’s credits or account receivables or any other kinds of deliverables is also allowed pursuant to the relevant provisions of the KCEA.

parties relating to the same issue, if the Korean judgment precedes the foreign judgment, the operation of res judicata of the former Korean judgment makes the latter foreign judgment deemed contrary to public policy or social order, which means recognition and enforcement cannot be granted (Supreme Court Judgment, Case No. 93Mu1051 dated 10 May 1994). Furthermore, even if a Korean judg-ment is preceded by a foreign judgment, in the prevailing view, the conclusion will be the same; the foreign judgment cannot be recognised or enforced. Given that court adju-dication is an exercise of a nation’s sovereignty, a Korean judgment has priority over a foreign judgment unless it is nullified in an appropriate procedure.

(b) When there is a Korean court proceeding pending between the parties, a foreign judgment dealing with the same issue has no obstacles to get recognition or enforcement so long as it satisfies the requirements stipulated in Article 217 of the KCPA. Moreover, in such case, if claims and their underlying causes of action are identical between the cases in the Korean court (where the case is pending) and in the foreign court (where the final judgment was rendered), for a case where the judgment creditor is plaintiff, the Korean court case, being a duplicative lawsuit, should be dismissed according to Article 259 of the KCPA. For the remaining cases, res judicata of the foreign judgment forbids the Korean court from rendering contrary decisions.


As explained at question 2.3, violation of individual manda-tory provisions of Korean law does not necessarily make a foreign judgment unrecognisable or unenforceable (Supreme Court Judgment, Case No. 2009Da22952 dated 25 June 2009). Accordingly, a foreign judgment which is in conflict with specific provisions of Korean law or a prior judgment on the same or a similar issue between different parties could still be recognised or enforced, unless it is deemed contrary to the public policy or social order of Korea and undermines the fundamental princi-ples or values of Korean law.


The fact that a foreign judgment purports to apply Korean law has no significance concerning recognition or enforcement of the judgment. Approval of a foreign judgment is granted without examining the appropriateness or rightfulness of the judgment in construing or applying relevant laws (Article 27, Paragraph 1 of the KCEA). Hence, the applicability, or even the incorrect application, of Korean law does not make a difference, unless the judgment is deemed contrary to the public policy or social order of Korea and undermines the fundamental princi-ples or values of Korean law.


Since Korea is a unitary state, not a federal state, there is no such difference.


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Among the requirements stipulated in Article 217 of the KCPA, the trickiest is the “mutual guarantee”. This requirement makes the current regime to recognise or enforce a foreign judgment in Korea dependent on the rules and policies of a foreign country, thereby making the execution judgment lawsuit unpredictable.

To satisfy this requirement, it is best if a judgment-rendering foreign country has one or more case records that it has approved Korean judgments previously. Conversely, if a foreign country rejected to approve a Korean judgment in the past, it would be very difficult to establish a mutual guarantee requirement. Absent such approval or disapproval case in the foreign country, it is still possible to establish a mutual guarantee between Korea and the foreign country by showing a substantial likelihood of potential approval in the foreign country, but it is practically the judgment creditor’s responsibility to convince the Korean court on that point. Therefore, it is advisable that a judgment cred-itor who files the application for execution judgment proactively introduces relevant rules and policies of the judgment-rendering foreign country and provides detailed explanations, with suffi-cient supporting materials, explaining why it is expected that the foreign country would approve the Korean judgment, without waiting for an ex officio investigation by the Korean court.

5 Other Matters


It may not be a recent case, but a Supreme Court case held in 2017 is worth noting with regard to the degree of specification of a foreign judgment subject to recognition and enforcement (Supreme Court Judgment, Case No. 2012Da23832 dated 30 May 2017).

It is an execution judgment case, where a judgment of specific performance was at issue, and the Supreme Court of Korea affirmed the rule that the obligation subject to the judgment should be sufficiently clear and specific to be enforceable, otherwise approval for recognition or enforcement cannot be granted. In the case, the Californian court issued a decree that: “Plaintiffs are entitled to specific performances pursuant to the memorandum and the exclusive license agreement.” It was disputed whether such decree was clear and specific enough to be enforceable. The Supreme Court of Korea denied enforce-ability of the decree on the ground that the rights agreed by the memorandum and the licence agreement were broad and comprehensive encompassing a domestic and overseas patent or patent application right, therefore the decree with such degree of specification did not seem to be immediately enforceable even in the decree-issuing state (California of the US).


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Bae, Kim & Lee LLC

Seong Soo Kim is a partner at Bae, Kim & Lee LLC, advising on a wide range of civil, commercial, criminal and administrative matters. His practice focuses primarily on appeals to the Supreme Court, large-scale white-collar crime, and local and international litigation and arbitration for multi-national companies. Mr. Kim started his career as a judge of the Seoul District Court in 1998 and served as a judge for 19 years before leaving his post as a presiding judge of the Seoul Central District Court in 2017 to join BKL. He studied international refugee law at the University of Michigan as a visiting scholar in 2002 and is serving as a member of the editorial advisory panel of RefLaw. Mr. Kim studied public law at Seoul National University School Law School and completed the 24th Judicial Research and Training Institute course.

Bae, Kim & Lee LLC26 Ujeongguk-roJongno-guSeoul (03161)Korea

Tel: +82 2 3404 0673Email: [email protected]: www.bkl.co.kr

Founded in 1980, Bae, Kim & Lee LLC (BKL) is one of the oldest law firms in Korea. As a full-service firm with more than 640 professionals based in Seoul and seven overseas offices, BKL provides a broad range of practice areas including corporate law and governance, tax, intellectual property, mergers and acquisitions, complex litigation, international arbitration, anti-trust, joint ventures and strategic alliances, regulatory and employment law, among others.BKL’s International Arbitration & Litigation Practice is one of the firm’s most highly respected practices, in terms of both domestic and international reputation. It has been honoured with such highly sought-after awards as the Global Arbitration Review’s “Win of the Year” (2010) and was the first firm in Korea (and only the second in Asia) to make the GAR 30 list of the most robust arbitration practices worldwide. BKL has consistently main-tained a top position in the arbitration and disputes field, both globally and regionally.

www.bkl.co.kr

Yoo Joung Kang is a senior associate at Bae, Kim & Lee LLC. Since joining Bae, Kim & Lee LLC in 2016, she has been focusing her practice on international arbitration and litigation as well as criminal defence and domestic litigation relating to civil or tax issues. She worked as a law clerk of the Seoul High Court immediately after completing the Judicial Research and Training Institute course, and joined Lee International IP & Law Group in 2015 where she handled a wide range of litigation and advisory matters. She earned an LL.B. degree from Seoul National University.

Bae, Kim & Lee LLC26 Ujeongguk-roJongno-guSeoul (03161)Korea

Tel: +82 2 3404 0989Email: [email protected]: www.bkl.co.kr



Chapter 23136

Liechtenstein

GASSER PARTNER Attorneys at Law Domenik Vogt

Thomas Nigg

Liechtenstein

The European Convention of 20 May 1980 concerning the recognition and enforcement of decisions relating to custody rights for children.

Andorra, Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom.

Section 3.

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.


Section 3.

2 General Regime


The enforcement of judgments in civil law issues in Liechtenstein is exclusively based on the Liechtenstein Enforcement Act of 24 November 1971 (Exekutionsordnung, “EO”). According to Art. 52 EO, a formal recognition and enforcement of a foreign judg-ment in Liechtenstein is contingent upon reciprocity and thus generally not possible.

However, decisions of foreign courts may be used as a basis for summary proceedings in accordance with the Civil Procedure Code of 10 December 1912 (Zivilprozessordnung, “ZPO”). If a

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Treaty between the Principality of Liechtenstein and the Swiss Confederation on the recognition and enforcement of judgments and arbitral awards dated 25 April 1968.

Liechtenstein and Switzerland.

Section 3.

Treaty between the Principality of Liechtenstein and the Republic of Austria on the recognition and enforcement of judgments, arbi-tral awards, settle-ments and public deeds dated 5 July 1973.

Liechtenstein and Austria.

Section 3.

The Hague Convention of 15 April 1958 concerning the recogni-tion and enforce-ment of decisions relating to mainte-nance obligations towards children.

Austria, Belgium, China (Macao), Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, Liechtenstein, the Netherlands, Norway, Portugal, Slovakia, Spain, Suriname, Sweden, Switzerland and Turkey.

Section 3.


137GASSER PARTNER Attorneys at Law


an immovable property if the immovable property is situated in Liechtenstein (§ 38 JN). Moreover, a venue may be established in Liechtenstein by way of a jurisdiction clause in a contract executed by both parties to the dispute (§ 53 JN).

For a long time, Liechtenstein courts have been applying the 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 case brought before the court. In the meantime, Liechtenstein courts have departed from this rule and thus the necessity for a close connection between Liechtenstein and the case brought before court has been eliminated.


Liechtenstein law distinguishes between recognition and enforcement of judgments. Recognition extends the effects of a foreign judgment to the recognising country, whereas enforce-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.

Depending on its nature and content, a foreign judgment only requires recognition, or it may require recognition and enforce-ment. For instance, a declaratory judgment can only be recog-nised, whereas a judgment granting performance can be recog-nised and enforced.


As already mentioned, foreign judgments may be rendered enforceable in Liechtenstein by way of a special procedure which is divided into summary proceedings and the (normally) ensuing Reinstitution Procedure.

Based on a foreign judgment, the creditor may apply for a payment order (if the foreign judgment states the debtor’s obli-gation to pay a certain amount of money or transfer fungible assets to the creditor) or a court order for a specific performance by the debtor (if the foreign judgment is of a declaratory nature or states the debtor’s 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 a result, although a formal recognition of a foreign judgment is 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 opposing party being heard, the debtor can raise an objection and thus nullify the court order by simple notice to the court.

If the summary court order is nullified upon an objec-tion by the debtor, the creditor may, in turn, demand that the court set aside the debtor’s objection and reinstitute the credi-tor’s summary court order. Such an application for reinstitution (Rechtsöffnungsgesuch) can be regarded as a regular claim and leads to a court procedure, which is, however, simplified and struc-tured as a very speedy summary procedure. The court must schedule a hearing, at the latest, five days after receipt of the application for reinstitution.

The Reinstitution Procedure is purely based on enforcement law. Thus, the court does not evaluate and decide whether the claim as such does exist. Instead, the court decides whether it is correct and lawful to enforce this claim in Liechtenstein.

summary court order is disputed, a specific procedure is instigated, the so-called “Reinstitution Procedure” (Rechtsöffnungsverfahren), which is regulated by the Act on the Protection of Rights of 9 February 1923 (Rechtssicherungsordnung, “RSO”). In most cases, this leads to an entirely new judging of the merits of the case in Liechtenstein.


As explained above, the scope of application of Art. 52 EO is rather limited and therefore, the legal requirements for a judg-ment according to the RSO are dealt with in the following.

To initiate the Reinstitution Procedure, a foreign public deed is required. In particular, a foreign judgment or a private acknowl-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 nature and aimed at the payment or surrender of money or an article of property. Lastly, the foreign judgment must be final and legally binding and must not violate the ordre public.


According to Art. 52 EO, a foreign judgment may only be enforced in Liechtenstein if and to the extent that this is stipu-lated in a treaty or if reciprocity is guaranteed by treaty or decla-ration of reciprocity. Therefore, in the absence of any applicable special regime, foreign judgments are principally not enforceable in Liechtenstein.

Although a formal recognition and thus an enforcement of a foreign judgment is therefore not possible in Liechtenstein, a successful plaintiff, who is a creditor on the basis of a foreign judgment, may achieve his goal by way of the Reinstitution Procedure.

As explained above, a foreign public deed is required to initiate the Reinstitution Procedure. Apart from the substantive requirements mentioned in question 2.2, the original foreign judgment or a certified copy thereof has to be presented to court. Furthermore, if the foreign judgment is in a language other than German, a translation of the judgment has to be produced.


The jurisdiction of Liechtenstein courts is stipulated in the Liechtenstein Judicature Act dated 10 December 1912 ( Jurisdiktionsnorm, “JN”). The local jurisdiction of Liechtenstein courts also establishes their international jurisdiction. Pursuant to § 30 JN, the Princely Court of Justice shall have jurisdiction if the defendant is domiciled in Liechtenstein (“general forum”).

In addition, there are several forums which constitute special jurisdictions in favour of a Liechtenstein court. For example, a venue may be established in Liechtenstein if the foreign defendant has assets in Liechtenstein (§ 50 para. 1 JN). Liechtenstein courts may have jurisdiction over a foreign-based company if either its permanent representation or its entities in charge of management are residents of Liechtenstein (§ 50 para. 3 JN). If a party has chosen a special location in Liechtenstein for the performance of an obligation, a lawsuit against that party may be brought at that place (§ 43 JN). Liechtenstein courts further have jurisdiction over actions asserting a right in rem to


138 Liechtenstein


If the birth, marriage or civil union was registered in a foreign civil register, the changes regarding the civil status, citizen-ship, name or marital status as well as the corrections of birth, death, marriage or civil union registrations may be registered in the domestic civil register on instruction of the government. A same-sex marriage contracted abroad is recognised as a civil union in Liechtenstein.

In the case of Liechtenstein citizens, the registration must be made if the change is to be regarded as legally effective.

On the basis of Art. 89 PGR, the registry office, which has been declared as competent by the government, has regularly verified, recognised and registered foreign decisions to the extent that they were relevant for the Liechtenstein register.


A formal recognition and enforcement of foreign decisions is principally not possible in Liechtenstein. Thus, the alternative procedures, such as summary proceedings and the Reinstitution Procedure, are considered in the following.

The application for a summary court order is to be dismissed by the court if there is a conflicting local judgment between the parties relating to the same issue or if there are local proceed-ings pending between the parties. However, as summary court orders are issued without the opposing party being heard, any conflicting local judgments or pending proceedings may go unno-ticed. Nevertheless, the debtor has the opportunity to object and thus to eliminate the court order by simple notice to the court.

In the Reinstitution Procedure, the debtor can oppose the claim raised by the creditor based on formal arguments. Therefore, he may also invoke the defences of res judicata or lis pendens. If there is a conflicting local judgment between the parties relating to the same issue or local proceedings pending between the parties, the court will dismiss the demand for reinstitution.


As already explained above, the conversion of a foreign judg-ment into a Liechtenstein judgment regularly leads to an entirely new judging of the merits of the case in Liechtenstein. As a result, the Liechtenstein courts will review whether the judg-ment was rendered in accordance with the applicable law. In particular, the Liechtenstein courts may verify whether the judg-ment is in accordance with the Liechtenstein ordre public.

A conflicting prior judgment on the same or a similar issue between different parties will be considered by the court and arguably hinder the conversion of the foreign judgment.


As stated above, the conversion of a foreign judgment into a Liechtenstein judgment involves a révision au fond. Therefore, a Liechtenstein court will review whether the foreign court has correctly applied the Liechtenstein substantive law.

In the course of the Reinstitution Procedure, the debtor is also heard and thus has a first chance to oppose the claim raised by the creditor based on formal arguments (e.g. lack of agreements on enforcement and acknowledgment, violation of the debtor’s right to be heard in the foreign procedure, lack of the foreign court’s competence to hear the case) and substantive arguments (e.g. ordre public). The debtor may furnish evidence by providing deeds or through the testimony of witnesses present at the hearing. As the Reinstitution Procedure is meant to be a speedy, simplified procedure, no other evidence is admissible.

If reinstitution is not granted, the creditor is informed by the court that if he wishes to pursue his claim further, he will have to file a claim in Liechtenstein. The dismissal of the creditor’s application for reinstitution only has a formally binding effect, but not a materially binding effect. Therefore, the creditor may initiate regular judicial proceedings without the debtor being able to object for reasons of res judicata.

If reinstitution is granted, the according decision of the court serves as a legal title, based on which the creditor can demand enforcement of his claim. The debtor may not formally appeal against this decision. However, the debtor may file the so-called Disallowance Claim (“Aberkennungsklage”).


By means of the Disallowance Claim, the debtor may object to the reinstitution. However, the Disallowance Claim is not a legal remedy in the sense of an appeal, but a regular claim aimed at a negative declaratory judgment. If it is granted, the court confirms that the claim underlying the Reinstitution Procedure does not exist or is not enforceable and that the reinstitution is set aside. The Disallowance Claim is beneficial for foreign creditors as it reverses the roles of the parties (the debtor must file the claim) and thus a foreign creditor does not have to provide a security deposit for procedural costs. However, although the debtor files the claim, the burden of proof is still placed upon the creditor.

In the course of the Disallowance Procedure, the debtor has the chance to lay out and prove his arguments in a regular, full and unrestricted court procedure and specifically object to the foundation and existence of the claim raised by the creditor for the first time. The Disallowance Procedure therefore no longer deals with the question of whether it was correct for the court to confirm enforceability of the creditor’s claim and thus to grant reinstitution, but it is, rather, a full procedure on the merits of the claim raised by the creditor – notwithstanding the fact that a foreign judgment on such a claim may already exist.


In the area of personal and family law, the strict requirement of reciprocity stipulated in Art. 52 EO is dispensed with. The recognition of personal and family law matters is stipulated in Art. 89 PGR. According to this provision, decisions or other deeds on changes regarding the civil status, citizenship, name or marital status of a person whose birth, marriage or civil union was certified in a domestic register shall be registered accord-ingly in the civil register upon approval of the government or, in case of appeal, the Administrative Court.

However, an approval may only be granted if the foreign decision or deed has been issued by the competent authority in accordance with the law of the country of origin.


139GASSER PARTNER Attorneys at Law


The New York Convention applies to the recognition and enforcement of foreign arbitral awards. In order to be recognised in Liechtenstein, an arbitral award must have been rendered in a contracting state as Liechtenstein reserved the application of the Convention only to recognition and enforcement of awards made in the territory of other contracting states. If an arbi-tral award is not made in the official language of Liechtenstein (German), the party applying for recognition and enforcement of the award shall produce a translation of these documents into German. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent (cf. Art. IV of the New York Convention).


The treaties with Austria and Switzerland, as well as the New York Convention, distinguish between recognition and enforce-ment. Recognition extends the legal effects of a foreign judg-ment to the recognising country, whereas enforcement denotes the execution of a judgment.


According to Art. 5 of the Treaty with Austria, the party seeking recognition of a judgment shall supply a counterpart of the judg-ment affixed with an official signature and the official seal or stamp, a judicial confirmation of the judgment’s entry into legal force and – if necessary – its enforceability, in case of a judgment by default a counterpart of the summons and a judicial confir-mation of the kind and time of its delivery to the absent party, and, if the facts of the case are not recognisable by means of the judgment, a counterpart of the claim or other appropriate deeds. Art. 5 of the Treaty with Switzerland lays down similar require-ments. However, in addition to the above-mentioned docu-ments, a translation of said documents may have to be provided since Switzerland has several official languages.

To obtain the recognition and enforcement of a foreign arbi-tral award under the New York Convention, the party applying for recognition and enforcement shall, at the time of the applica-tion, supply the duly authenticated original award or a duly certi-fied copy thereof and the original arbitral agreement or a duly certified copy thereof.


In case of the treaties with Austria and Switzerland, judgments which are sought to be recognised and enforced must not be reviewed as to the correct application of substantive law. It may 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 the New York Convention can be challenged on the grounds stipulated in Art. V. These include:■ lack of a valid arbitration agreement;■ violations of the right to be heard;■ excess of the scope of the arbitration agreement;


The above-mentioned laws (EO, ZPO, RSO, PGR) apply uniformly throughout Liechtenstein. There are no differences in the rules and procedure of recognition and enforcement between various regions.


The statute of limitation is a question of substantive and not of procedural law. As a result, the limitation period varies 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.

Under Liechtenstein law, a judgment may be enforced within 30 years of its entry into legal force, irrespective of which limi-tation period has been applicable to the underlying claim. The limitation period is interrupted as soon as a motion for enforce-ment is filed with the competent court, provided that it is granted eventually.



Among the multilateral and bilateral treaties and conventions listed in question 1.1, the most important ones are the Treaty between Liechtenstein and Switzerland, the Treaty between Liechtenstein and Austria and the New York Convention, all of which will be dealt with in the following.

The Treaty between Liechtenstein and Austria regulates judg-ments, arbitral awards, settlements and public deeds in civil and commercial matters. Decisions in insolvency proceed-ings, decisions in inheritance and estate proceedings, decisions in guardianship and tutelage proceedings, interlocutory injunc-tions, administrative penalties, and decisions on civil law claims rendered in criminal proceedings are excluded from the scope of the Treaty. The requirements for the recognition of judgments 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 particular, the decision must not violate the principle of res judi-cata. Secondly, the decision must have been rendered by a court which was competent to do so in accordance with Art. 2 of the Treaty. Thirdly, the decision must be final and binding as well as enforceable. And finally, in case of judgments by default, summary court orders and payment orders, the opposing party must have been summoned in accordance with the law.

The Treaty between Liechtenstein and Switzerland regulates judgments and arbitral awards in civil matters. Art. 1 of the Treaty between Liechtenstein and Switzerland stipulates essen-tially the same requirements as Art. 1 of the Treaty between Liechtenstein and Austria. However, the Treaty only excludes the recognition and enforcement of decisions in insolvency proceedings, interlocutory injunctions, administrative penalties, and decisions on civil law claims rendered in criminal proceed-ings from its scope.


140 Liechtenstein


5 Other Matters


As Liechtenstein has a quite restrictive approach regarding the recognition and enforcement of foreign judgments; there are not many noteworthy recent legal developments in this regard. However, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards was joined by Liechtenstein quite recently. It has been applicable in Liechtenstein since 5 October 2011. Now parties may solve their civil disputes quickly, discreetly and considerably more cheaply before a “private” ad hoc arbitral panel which they can appoint free of many structural formalities. And, most impor-tantly, the award may be enforced both in Liechtenstein and abroad. Liechtenstein follows the recent dynamic international trend of solving important financial disputes not before courts of law, but via arbitration.


Foreign judgments are principally not enforceable in Liechtenstein. Though Liechtenstein law offers a few routes to finally obtain what a Liechtenstein debtor owes, the effort to enforce a foreign judgment in Liechtenstein often leads to an entirely new judging of the merits of the case in Liechtenstein.

Thus, instead of initiating legal proceedings against a Liechtenstein debtor outside Liechtenstein, even if that is done through a contractual jurisdiction clause, the substantial diffi-culties, additional costs and efforts required for the enforce-ment of a foreign judgment in Liechtenstein may overall make it easier, more efficient and cheaper to sue a Liechtenstein debtor at the outset in Liechtenstein.

■ irregularities in the constitution of the arbitral tribunal or the proceedings;

■ lack of a final and binding award;■ lack of objective arbitrability; and■ violation of public policy.

4 Enforcement


Liechtenstein enforcement law provides for various methods of enforcement. On the one hand, a distinction is made as to 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.

If the judgment is based on a monetary claim, the creditor is provided with the following enforcement measures: with regard 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 seizure, valuation and compulsory sale. Lastly, attachment and transfer of receivables is possible.

If the judgment is based on a claim for specific performance, the creditor has the following options: with regard to the surrender of movable property, the creditor may order the bailiff to seize the specified property and deliver it against acknowl-edgment; as regards the transfer of immovable property, the creditor may order the bailiff to evict the property and confer possession upon the creditor; or finally, the performance or permission of an act or omission by the debtor may be achieved by different means: the creditor may have a third party perform 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.


141


GASSER PARTNER Attorneys at Law

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 LawWuhrstrasse 69490 VaduzLiechtenstein

Tel: +423 236 30 80Email: [email protected]: www.gasserpartner.com/en

As an international independent law firm, GASSER PARTNER exclusively focuses on “classic” attorney-at-law activities. This primarily comprises the legal representation of clients before courts and public authorities, as well as providing advice in all areas of the law. As one of the leading law firms in Liechtenstein, we have built up and steadily extended our knowledge and experience, particularly in the area of business law, over decades.We advise and represent private clients (especially HNWIs) as well as companies from Liechtenstein and abroad. Our institutional clients include, inter alia, banks, asset managers, fiduciary service providers, insurance companies, fund administrators as well as local and foreign authorities. Due to the location of our offices in Vaduz, Zurich and Vienna, and the regular close collaboration with foreign law firms, we have excellent global links.Owing to our size and expertise, we have specialists in every area of the law. In particular, this enables us to efficiently solve complex, international cases.

www.gasserpartner.com/en

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. 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 LawWuhrstrasse 69490 VaduzLiechtenstein

Tel: +423 236 30 80Email: [email protected]: www.gasserpartner.com/en


Chapter 24142

Luxembourg

PIERRE THIELEN AVOCATS S.à r.l Peggy Goossens

Luxembourg


Lugano Convention of 16 September 1988 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

State parties to multilateral convention.

Section 2.

Convention of 29 July 1971 between the Grand Duchy of Luxembourg and the Republic of Austria on the Recognition and Enforcement of Judgments and Authentic Instruments in Civil and Commercial Matters.


Section 2.

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“New York Convention”).


Section 2.

Hague Convention of 2 October 1973 on Recognition and Enforcement of Decisions relating to Maintenance Obligations.


Section 2.

Bilateral conventions.

State parties to bilateral conventions.

Section 3.

1 Country Finder





Luxembourg New Code of Civil Procedure (“NCPC”).

All jurisdic-tions for which no EU or bilat-eral or multilateral conventions apply.

Section 2.

Multilateral conventions including:Brussels Treaty of 24 November 1961 between Belgium, the Netherlands and Luxembourg on the Jurisdiction, Bankruptcy, Validity and Enforcement of Judgments, Arbitration Awards and Authentic Instruments.


Section 2.

Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended.


Section 2.


143PIERRE THIELEN AVOCATS S.à r.l


to accept jurisdiction for recognition and enforcement of a foreign judgment is that the defendant’s domicile or residence is located in Luxembourg or the place of execution is located in Luxembourg (Article 680 of the NCPC).


Luxembourg distinguishes between recognition and enforcement of judgments even if Article 678 of the NCPC only refers to enforce-ment. Recognition is intended to introduce into the Luxembourgish legal order the situation established by a foreign judgment.

A party could request recognition to prevent a claim already judged in a foreign court from being made in Luxembourg, to establish a status or, to the contrary, to support a new claim made in Luxembourg on the basis of the legal situation created by a foreign judgment.

When the foreign judgment concerns an order to perform a certain act, one should not only seek recognition but also enforcement. Enforcement allows a party to take coercive measures against the debtor on Luxembourg territory. The foreign judgment acquires the same legal force and effect as Luxembourgish judgments, providing full access to the avail-able enforcement measures under local law.


Judgments from a Member State pronounced since 10 January 2015 are recognised in the other Member States without the need for any procedure (abolition of exequatur). No procedure is required for the recognition of those foreign judgments in Luxembourg.

Foreign judgments subject to a treaty must be submitted to simplified exequatur formalities to have legal effects in Luxembourg.

The party seeking enforcement has to make a request to the President of the District Court who will grant an order if all the criteria are met. A lawyer at the court is required to intervene.

The court will examine the grounds for granting leave for enforcement (see the answer to question 2.3), as well as the grounds for refusing enforcement and will decide based only on documents, i.e. without conducting a hearing or else involving the debtor. This unilateral procedure was designed to grant the creditor the advantage of being able to gain enforcement access without the debtor being aware.

Foreign judgments not subject to a treaty or EU law must be submitted to the exequatur formalities to have legal effect in Luxembourg in the presence of the prosecutor, who will make sure the public’s interests are preserved.


A foreign judgment may only be challenged on the grounds that:■ the foreign judgment does not meet the conditions set out

in question 2.3 above or if the requirements provided by the applicable treaty/convention are not fulfilled;

■ the foreign judgment was procured by fraud; or■ the foreign judgment conflicts with another national

judgment.Under no circumstances may the decision be reviewed on the

merits (Article 681 of the NCPC).

2 General Regime


The legal framework under which a foreign judgment would be recognised and enforced in Luxembourg absent any appli-cable (international bilateral or multilateral treaty or regulation of the European Union) is set out both in the New Code of Civil Procedure (“NCPC”) and the Civil Code.

Article 678 of the NCPC provides that the judgments rendered by foreign courts will be enforceable in Luxembourg as foreseen under Articles 2123 and 2128 of the Civil Code.

In the event that there is a special regime, then the rules of such will supersede and disapply the NCPC which provides for a regime of recognition and enforceability by default.


“Judgment” refers to all foreign decisions in civil and commer-cial matters taken by an official authority exercising judicial power or having the competence to decide over a dispute in a binding manner.

Any such decision is apt to be recognised or declared enforce-able, whatever its name and whatever the nature of the authority that has rendered it.

It can include orders, default judgments, injunctions, interim measures as well as public deeds or arbitral sentences.


There is no specific requirement about the form except the deci-sion must be in written form and must contain an order that can be executed (Court of Appeal Luxembourg 14 May 1975, Pas.23, p. 138).

The foreign judgment must also be enforceable in its origin’s jurisdiction.

Regarding the substance, a foreign judgment must satisfy the following conditions in order to be recognised and enforceable in accordance with Article 678 of the NCPC and Articles 2123 and 2128 of the Luxembourg Civil Code: ■ The foreign judgment must not be contrary to Luxembourg

public order.■ The foreign judgment must be enforceable in the country

where it has been rendered.■ The foreign judgment must have been given by a jurisdic-

tion recognised by Luxembourg.■ The foreign judgment is not contrary to a judgment of a

local court which was issued in the same case between the same parties.

■ The defendant had proper notice of the proceedings meaning the party who lost was not deprived of the right to a defence.


The only legally required connection for Luxembourg courts


144 Luxembourg



The rule is that under no circumstances may the foreign decision be reviewed on the merits. Luxembourg courts cannot review the merits of a foreign judgment, even if a foreign judgment incorrectly applied Luxembourg law.

The only exception would be that the recognition and enforce-ment of the foreign judgment would result to an incompatibility with Luxembourg public policy rules.


No. The same rules apply to the entire country.


There is no set limitation period. The relevant limitation period to recognise and enforce a foreign judgment depends on the law applicable to the foreign judgment in its country of origin as long as the only specific provision applying to a limitation period provides that a foreign judgment has to be enforceable in its country of origin.

For this reason, the law governing the limitation period of the executory title is the foreign law.

In any event, the limitation period to enforce a Luxembourg court leave is 30 years.



European judgments are recognised upon the simple produc-tion of a copy of the decision translated and the certificate required by Council Regulation (EU) No. 1215/2012 of the European Parliament and the Council of 12 December 2012 on the Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters.

Foreign judgments subject to a treaty can be recognised on basis of the requirements provided by the treaty.

Foreign judgments not subject to a treaty or EU law are subject to the requirements provided for in the questions above.


None of them provide for rules that would be specific to either procedure. There is no procedural distinction and recognition and enforcement are not differentiated in the texts.

Against the decision authorising enforcement, the party against whom enforcement is sought may appeal to the High Court of Justice sitting in appeal proceedings within one month of service of the decision when the appellant is domiciled in the country and within two months when the appellant is domi-ciled abroad. The decision handed down by the Court may be appealed in cassation in the manner and within the time limits provided for in civil matters under ordinary law.

Against the decision rejecting the application for exequatur, 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.


With the exception of matters governed by European texts, the Luxembourg provisions are contained in the NCPC and are of a general nature. Provisions derogating from the general regime or special rules apply, i.e.:■ To the status and capacity of persons (Administrative

Court of Luxembourg, 19 March 2003, role 15288). ■ Mutual legal assistance in matters of custody of and access

to children and maintenance obligations (Articles 1111 et seq. of the NCPC).

■ Foreign confiscation decisions in criminal matters (Articles 659 et seq. of the Code of Criminal Procedure).

■ Arbitral sentences (Article 1251 of the NCPC).■ Precautionary seizures of bank accounts.■ Decisions taken in application of European small claims

procedures or payment orders.


Recognition and enforcement would be refused in case of incompatibility with a conflicting local judgment between the parties relating to the same issue.

Local proceedings pending may be a ground to suspend. When a recognition and enforcement of a foreign judgment is initiated, the judge should stay the exequatur proceeding until the local decision is handed down.


Thus, incompatibility with local law does not in itself consti-tute a ground for refusing the recognition or enforcement of a foreign executory title unless it amounts to a breach of the fundamental principles of substantive or procedural law.

For that reason, the existence of a conflicting local law or prior judgment on the same or a similar issue but between different parties is irrelevant, unless the recognition and enforcement of the foreign judgment would result to an incompatibility with Luxembourg public policy rules.


145PIERRE THIELEN AVOCATS S.à r.l


5 Other Matters


In Luxembourg, there is a draft law in progress which includes new provisions on the simplified procedure for the recognition and enforcement of European orders for the attachment of bank accounts as provided for in EU Regulation No. 655/2014 of the European Parliament and of the Council of 15 May 2014.


The procedure may only result in payment if the debtor owns assets which are identified and of sufficient value.

Luxembourg allows interim enforcement measures on the basis of a foreign judgment even before starting recognition/enforcement court proceedings, provided that it can rely on the existence of a threat to the recovery of its claim. Tips will then be able to attach to the debtor’s assets before any other step.

A red flag will be that publicly available information on this issue is scattered and difficult to collect.


The procedures are essentially the same as in the specific 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 and expressly govern the documentation that a party seeking enforcement has to furnish, i.e. the Lugano Convention, which requires original and standard forms in its annex.


There are no specific rules applying only to judgments from certain countries. The conditions vary according to the appli-cable texts and the provisions they contain. European instru-ments, treaties or conventions have their own specific rules on recognition and enforcement of judgements which will prevail such as those detailed in section 2.

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 if there are serious reasons to believe that the request is based on considerations of race, religion, nationality or political opinion.

4 Enforcement


Luxembourg law provides that the decision granting enforce-ment automatically carries with it the authorisation to proceed with such measures.

The foreign judgment will have the same legal force and effect as that of a Luxembourgish enforceable title, providing full access to the available enforcement measures under local law.

Enforcement of the recognised foreign judgment can usually be undertaken by taking out mortgages, selling the debtor’s property and assets, seizing bank accounts or a compulsory wage.

The enforcement decision may also condemn the debtor to perform or avoid specific actions.

All physical actions can only be initiated by a bailiff.


146

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.l5–11 Avenue Gaston DiderichL-1420 Luxembourg

Tel: +352 44 62 411Email: [email protected]: 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

Luxembourg



Chapter 25 147

Malaysia

Rahmat Lim & Partners Daphne Koo

Jack Yow

Malaysia


Probate and Administration Act 1959 (“PBA”)

Commonwealth countries

Sections 2 and 3

2 General Regime


The common law generally provides for the recognition and enforcement of a foreign judgment via the initiation of a fresh suit in court to enforce such judgment. Foreign monetary judg-ments which fall within the ambit of REJA may, however, only be enforced via a registration under REJA. In practice, regis-tration under REJA appears to be the most common manner in which foreign monetary judgments are enforced in Malaysia.


A judgment capable of recognition and enforcement in Malaysia has been outlined in REJA in its interpretation section as:■ a judgment or order given or made by a court in any civil

proceedings; or■ a judgment or order given or made by a court in any crim-

inal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party; and

■ except in relation to a country or territory outside the Commonwealth, an award in proceedings in an arbitra-tion if the award has, pursuant to the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place; and a judgment given in any court on appeal from a judgment given in the High Court shall be deemed to be a judgment given in the High Court, a judgment capable of recogni-tion and enforcement in Malaysia.

The judgment must also satisfy the other requirements listed within REJA to ensure that the judgment is capable of being recognised and enforced.


The requirements that a foreign judgment must satisfy in order to be enforceable under REJA are as follows:

1 Country Finder





Reciprocal Enforcement of Judgments Act 1958 (“REJA”)

The United Kingdom, Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”), Singapore, New Zealand, Republic of Sri Lanka (Ceylon), India (excluding State of Jammu and Kashmir, State of Manipur, Tribal areas of State of Assam, Scheduled areas of the States of Madras and Andhra), and Brunei Darussalam

Sections 2, 3 and 5

Maintenance Orders (Facilities for Enforcement) Act 1949 (“MOFEA”)

Australia, Brunei, Ceylon, England, Bailiwick of the Island of Guernsey, Hong Kong, India (excluding Jammu and Kashmir), Island of Jersey, Isle of Man, New Zealand, Norfolk Island, Northern Ireland, Pakistan, Singapore, South Africa and Wales

Section 3


148 Malaysia


■ The foreign judgment creditor must lodge an originating summons supported by an affidavit. In practice, the initial hearing date is sought on an ex parte basis. The affidavit in support must exhibit a duly verified, or certified, or authenticated copy of the foreign judgment. If the judg-ment is not in English, a translation certified by a notary public must also be filed. The affidavit must comply with the formalities listed under Order 67 rule 3 of the Rules of Court (“ROC”), including, among other things:■ stating the name, trade or business and usual or last

known address of the judgment creditor and judgment debtor; and

■ stating to the best of the information or belief of the deponent that:■ the judgment creditor is entitled to enforce the

judgment;■ the judgment has not been satisfied;■ the judgment does not fall within any of the cases

in which the judgment may not be ordered to be registered under REJA;

■ as at the date of the application the judgment may be enforced by execution in the country of the original court; and

■ if registered, the registration would not be liable to be set aside under REJA.

■ On the hearing date, the court will, if the application appears on its face to comply with REJA, grant leave to register the same. The order for leave must state the period within which an application may be made to set aside the registra-tion, and that execution on the judgment will not be issued until the expiration of that period. Typically, the court will grant 14 to 21 days for such an application to be made. The order for leave to register the foreign judgment must be served on the judgment debtor with a notice of registration.

■ The person serving the notice of registration must endorse the notice within three days after the date on which the notice was served.

■ If an application to set aside the registration of the judg-ment is filed by the judgment debtor, the court will fix a hearing date for the application. In such instance, execu-tion of the judgment may not be levied until and after such an application has been determined.


An action on a foreign judgment under common law may be opposed on the following grounds:a) that the foreign court had no jurisdiction;b) that the judgment was obtained by fraud;c) that enforcement of the judgment would be contrary to

public policy; or d) that the proceedings in which the judgment was obtained

were opposed to natural justice.Under REJA, the grounds upon which registration of a

foreign judgment may be set aside are as follows:a) judgment is not a judgment to which Part II of REJA

applies, or was registered in contravention of REJA;b) judgment is not a judgment of a superior court or a recipro-

cating country or was registered in contravention of REJA;c) court of the country or the original court had no jurisdic-

tion in the circumstances of the case; d) judgment debtor, being a defendant in the proceedings in

the original court, did not receive notice of such proceed-ings in sufficient time to enable him to defend the proceed-ings and did not appear;

a) the judgment must be a monetary judgment;b) the judgment must be a judgment of a superior court from

a reciprocating country under the First Schedule of REJA; c) the foreign court must have had jurisdiction;d) the judgment was not obtained by fraud;e) the enforcement of the judgment is not contrary to public

policy in Malaysia; andf) the judgment must be final and conclusive.

The requirements for an action on a foreign judgment at common law are similar to those under REJA, with the only substantive difference being that the judgment need not be a judgment of a superior court from a reciprocating country under REJA.


The countries must be a country or territory within the Commonwealth and expressly specified and listed in REJA, MOFEA and PBA, respectively.

For example, the PBA states that the “Commonwealth” includes any country which the Yang di-Pertuan Agong may (by notification published in the Gazette) direct to be included among the countries to which the recognition and enforcement of foreign judgment applies.


Yes, there is. Recognition of a foreign judgment refers to the acceptance by the Malaysian courts that such judgment gives rise to vested rights through a foreign judicial process. The recognition of a foreign judgment is an essential precursor to the enforcement of such judgment, but does not necessarily mean that such judgment will then be enforced in Malaysia. For example, a foreign judgment may be relied upon as establishing a set of facts for the purpose of Malaysian proceedings, even if enforcement of the judgment is not sought. Enforcement of a foreign judgment, on the other hand, refers to the process by which the judgment may be executed or enforced in Malaysia as though it were a Malaysian judgment (for example, by attaching the assets of a judgment debtor to satisfy a judgment debt).


Insofar as the common law enforcement of a non-REJA foreign judgment is concerned, the procedure is as follows:■ An action on a judgment may be commenced by way of a

writ action. Once the writ and relevant statement of claim have been served on the defendant and the defendant has entered an appearance, the plaintiff may file an application for a summary judgment, annexing a certified sealed copy of the foreign judgment. The court may grant a summary judgment if no triable issue is raised by the defendant.

■ Alternatively, an action on a judgment may be commenced by way of presentation of an originating summons with a supporting affidavit, with a certified sealed copy of the foreign judgment annexed. At the hearing of the origi-nating summons, the court will, if it is satisfied that the judgment ought to be recognised and enforced, grant an order in terms of the originating summons.

The procedure for recognition and enforcement of a foreign judgment under REJA is as follows:


149Rahmat Lim & Partners


foreign judgment. The common law enforcement or registra-tion under REJA of a foreign judgment may only be challenged on the grounds set out in question 2.7 above.


No, the rules and procedures outlined above apply throughout Malaysia.


Insofar as common law enforcement is concerned, the Limitation Act 1953 provides that an action upon any judgment must not be brought after the expiration of 12 years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt can be recovered after the expira-tion of six years from the date on which the interest became due.

Insofar as REJA is concerned, a judgment creditor may apply to the relevant High Court to register a judgment within six years from the date of the judgment, or where there have been proceedings by way of an appeal against the judgment, after the date of the last judgment given in those proceedings.



REJAFor a judgment to be registered under REJA, it must be a mone-tary judgment made by a superior court of a reciprocating country under REJA. The judgment must also be final and conclusive between the parties. The full details are set out in questions 2.3 and 2.6 above.

MOFEAa) The judgment must be a maintenance order (defined as an

order other than an order of affiliation, for the periodical payment of sums of money towards the maintenance of the spouse or other dependants of the person against whom the order is made, which includes, with reference to Northern Ireland, an order or decree for the recovery or repayment of the cost of relief or maintenance made by virtue of the provisions of the Imperial Acts entitled in the Poor Relief (Ireland) Acts 1893 to 1914).

b) The maintenance order must have been made by a court in a reciprocating country under MOFEA.

c) A certified copy of the order would have to have been transmitted to the Minister charged with responsibility for the judiciary in Malaysia, who would have had to send the same to the appropriate local court for registration in the prescribed manner (the local court for this purpose being defined as a Sessions Court or a Magistrate’s Court having jurisdiction to try suits relating to maintenance of wives or children).

e) judgment was obtained by fraud;f ) enforcement of the judgment would be contrary to public

policy; org) rights under the judgment are not vested in the person by

whom the application for the registration was made.


The following are the relevant legal frameworks applicable to specific subject matters:■ REJA – the registration of final and conclusive monetary

judgments made by superior courts of reciprocating coun-tries under REJA.

■ MOFEA – the registration of orders for maintenance payments in a matrimonial relationship.

■ PBA – the re-sealing of a grant of probate or letter of admin-istration issued by a court of a Commonwealth country.


Conflicting local judgment between the parties relating to the same issueA local judgment between parties relating to the same issue would amount to res judicata between the same parties. This is a form of estoppel against re-litigation of the same subject matter in Malaysia. It is therefore likely that the court would dismiss an action on the judgment (or allow an application to set aside registration of the foreign judgment under REJA), either on the basis that the foreign court did not have jurisdiction or that registration would be contrary to public policy.

Local proceedings pending between the partiesIf the local proceedings are pending between the parties, the court may adjourn the hearing of the action on the judgment (or the application to set aside registration of the judgment under REJA, as applicable) until the determination of the local proceedings between the parties. This is especially so if, in the local proceed-ings, one of the parties is alleging that the foreign court lacked jurisdiction, that the judgment debtor had no notice of the orig-inal proceedings, or the judgment was obtained by fraud.


A conflicting local law, or prior judgment between different parties, would not by itself be a bar to enforcement of a foreign judgment under common law or under REJA. Enforcement of a foreign judg-ment, however, will be refused (or, in the case of REJA, the regis-tration of the foreign judgment will be liable to be set aside) if the reason for such conflict is contrary to the public policy in Malaysia.


The approach is no different from that applied to any other


150 Malaysia


supported by an affidavit sworn by the administrator or exec-utor setting out therein, inter alia, the relationship of adminis-trators to the deceased, particulars of the deceased, and a list of the deceased’s liabilities and assets in Malaysia as well as the list of the beneficiaries of the deceased’s estate. The applicant must also furnish two certified sealed copies of the grant of 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 hold a hearing and once the court has granted the order for the resealing of the grant of probate, it must issue a Notice of Resealing to the original court by whom the grant was issued. At the point of resealing, the grant will have the same force and effect in Malaysia as it did in the original jurisdiction.


REJAUnder section 5 of REJA, registration of a judgment may be set aside on the following grounds:a) the judgment was registered in contravention of REJA;b) the originating court which gave the judgment had no

jurisdiction to do so;c) the judgment debtor did not receive notice of the proceed-

ings in regard to the judgment in sufficient time to allow him to defend himself;

d) the judgment was obtained by fraud;e) the enforcement of the judgment would be contrary to

Malaysian public policy; f ) the rights under the judgment would be contrary to

Malaysian public policy; org) the rights under the judgment are not vested in the person

who applied for the registration of the judgment.The setting aside of a registered judgment may be undertaken

by way of an application to court, within the duration specified in the notice of registration of the foreign judgment.

MOFEAThere are no specific provisions allowing for a challenge to a maintenance order duly registered under MOFEA. Insofar as provisional orders made by the original court are concerned, the person against whom the order is made has a right to raise any defence which he might have raised in the original proceedings had he been a party thereto, but no other defence.

PBAAn order on an application for the re-sealing of probate or letters of administration will not be granted if, at the time of his death, the deceased was not domiciled within the jurisdiction of the court by which the grant was issued, unless the grant is such as the High Court would have made. The resealing is a matter of discretion, and the court may defer the hearing of or even refuse the application in special circumstances (for example, if the will is “wholly or mainly operative” under lex domicile).

4 Enforcement


To enforce a monetary judgment, a judgment creditor may opt for one or more of the following enforcement methods:

PBAa) Two certified sealed copies of the grant of probate or

letter of administration issued by a court from the relevant Commonwealth country.

b) A list of the deceased’s liabilities and assets in Malaysia.c) A list of the beneficiaries of the deceased’s estate. d) A certified true extract of the deceased’s death certificate.e) A bond made by an administrator as a form of security.


There is no express provision specifying the distinction between recognition and enforcement under each specific regime. The distinction, however, is implicit in that a foreign judgment must first be recognised by the Malaysian courts before it may be enforced as though it were a local judgment. Actual enforcement of the judgment would be subject to the laws and rules relating to the specific enforcement procedure in question. For example, the rules relating to the enforcement of a judgment via a writ of seizure and sale would differ from the rules relating to garnishee proceedings.


REJAIn registering a foreign judgment under the REJA, the appli-cant would be required to file an ex parte originating summons with an affidavit in support containing the information required under Order 67 rule 3 of the ROC. An affidavit must also be lodged affirming that the judgment may be enforced in the orig-inal country. The documents must then be filed with the rele-vant High Court, which will then give the appropriate order. Upon registration of the judgment pursuant to an order of the 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 applicant must personally serve a notice of registration of the judgment on the respondent. Execution of the judgment may only be effected upon the lapse of the time period given to the respondent to set aside the registration of the judgment, at which point the applicant must produce to the Sheriff an affidavit of service proving that service was effected upon the respondent, as well as any order made by the court in relation to the judgment.

MOFEAThe relevant foreign order must be transmitted to the Minister in charge of the Judiciary in Malaysia, who is then required to forward the order to the local court in the district of the person against whom the order is made. The order is then registered, and has the same effect and force as if it was granted within the jurisdiction. Pursuant thereto, proceedings may be taken on the order, and the court in which the order was registered has the power to enforce the order.

PBAWhere a Court of Probate from a Commonwealth country has issued an order for the sealing of a grant of probate or letter of administration, the High Court has the power to reseal such document. The application for the resealing of a grant of probate must be made by way of an originating summons


151Rahmat Lim & Partners


On appeal, however, the Court of Appeal held that whilst res judicata can indeed be considered as a facet of public policy, it was not applicable to the facts of the case, as the Singapore judgment was considered as final and conclusive between the parties in the Singapore suit, which fulfilled the requirement of REJA 1958. The order of the High Court setting aside the registration of the Singapore judgment was therefore set aside.


It would be important to identify whether the judgment is a monetary judgment, and whether it is a judgment of a superior court of a reciprocating country under REJA. This will enable the client to determine whether an application for registration under REJA may be made, or whether an action on the judg-ment under common law is required.

Next is the issue on when an application for enforcement should be made. An action on the judgment or application for registration under REJA may not be successful if there is a pending appeal against the judgment in the original court. It would be preferable to only apply for a registration and/or enforcement after all avenues of appeal have been exhausted in the original court.

Last but not least, it is important to ensure that the formalities for recognition and enforcement in Malaysia are duly complied with. In this regard, it is often necessary to have legal counsel from the jurisdiction of the original court work closely with Malaysian counsel (for example, such foreign counsel may be 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 judgment).

a) a writ of seizure and sale;b) an application for examination of the judgment debtor;c) an application for a garnishee order;d) an application for a charging order in respect of shares

held by the judgment debtor; ore) an initiation of bankruptcy or winding-up of proceedings.

5 Other Matters


In the recent case of Mann Holdings Pte Ltd & Anor v Ung Yoke Hong [2019] 6 CLJ 475, the parties underwent a series of litiga-tion in Singapore and Malaysia. The appellant had applied to the Malaysian courts for a stay of proceedings (“Malaysian stay proceedings”) to preserve the integrity of the Singapore suit. However, the Malaysian courts dismissed the stay applications. Subsequently, the appellant registered the judgment of the Singapore Court of Appeal under REJA 1958 (“Singapore judg-ment”). The respondent sought to set aside the registered judg-ment, on the ground that the outcome of the earlier Malaysian stay proceedings amounted to res judicata.

The High Court of Malaya held that an ex parte registration of a foreign judgment may be set aside on the grounds of res judicata and/or estoppel, since the Malaysian courts had earlier dismissed the Malaysian stay proceedings on the ground that Malaysia is the more appropriate jurisdiction to hear the matter. The court acknowledged that res judicata is a facet of public policy which is a ground to set aside a registered judgment provided under section 5(1) of REJA.


152

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 subsid-iary 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 & PartnersSuite 33.01 Level 33The Gardens North TowerMid Valley CityLingkaran Syed Putra59200 Kuala LumpurMalaysia

Tel: +603 2299 3898Email: [email protected]: www.rahmatlim.com

Established in 2010 with just 10 lawyers, Rahmat Lim & Partners has grown by leaps and bounds to become one of the largest and most prestigious corporate law firms in Malaysia, highly ranked by legal directories and publi-cations in almost every field of practice.Through our association with Allen & Gledhill LLP, Singapore and the other members of the A&G family, we are closely connected to a wider network of best-in-class friends around the world. Our distinctive culture reflects the 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 spec-trum of contentious work, including banking, enforcement of security, corporate disputes, minority oppression and shareholder disputes, conten-tious insolvency and restructuring, probate and administration, administra-tive law, insurance, professional negligence, property, securities and trusts. Our team includes experienced lawyers who regularly act for and advise banks, financial institutions, general creditors, liquidators, receivers and managers on all aspects of restructuring and insolvency matters, multina-tionals, local blue chip companies, accounting firms, institutional and indi-vidual shareholders of major listed companies and large private compa-nies, as well as boards of directors of public and private companies.

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 & PartnersSuite 33.01 Level 33The Gardens North TowerMid Valley CityLingkaran Syed Putra59200 Kuala LumpurMalaysia

Tel: +603 2299 3869Email: [email protected]: www.rahmatlim.com



Chapter 26 153

Malta

GVZH Advocates

Dr. Ariana Falzon

Dr. Karl Briffa

Malta


Dr. Nicole Sciberras Debono


The COCP does not define what constitutes a ‘judgment’. However, Article 826 of the COCP provides that “any judgment 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 appeal) may be enforced by the competent court in Malta”.

Moreover, Article 2 of the Brussels I Recast Regulation defines ‘judgment’ as any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a deci-sion on the determination of costs or expenses by an officer of the court. It may also include protective or provisional meas-ures, ordered by a court or tribunal which has jurisdiction as to the substance of a particular matter.


Article 826 of the COCP states that the foreign judgment must be delivered by a competent court outside of Malta and must be final and conclusive according to the law of the country in which it was delivered and no longer subject to appeal.


There is no requirement to establish a degree of connection with Malta for the Maltese courts to accept jurisdiction for recogni-tion and enforcement of a foreign judgment.


In order for a judgment to be enforced it must first be recognised.

1 Country Finder





The Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta.

All jurisdictions for which no EU or bilateral conventions apply.

Section 2.

The British Judgments (Reciprocal Enforcement) Act, Chapter 52 of the Laws of Malta.

The United Kingdom.

Section 3.

2 General Regime


The recognition and enforcement of foreign judgments is governed by Title V of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) (“COCP”), entitled “Of the Enforcement of Judgments of Tribunals of Countries Outside Malta”.

Specifically with regards to judgments given by foreign courts within the European Union, Article 825A provides that the provisions of Title V can only apply when they are consistent with Regulation (EU) 1215/2012 on jurisdiction and the recog-nition and enforcement of judgments in civil and commer-cial matters (The “Brussels I Recast” Regulation). The latter prevails if there is a conflict with the COCP.


154 Malta


given in an action on the same subject matter between the same parties, and constituting res judicata, provided no such plea was raised and determined by the court of origin;

xiii. where the judgment contains contrary dispositions, specif-ically in the operative part;

xiv. where the judgment was based on evidence which, in a subsequent judgment, was declared to be false or which 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 obtained, of which the party producing it had no knowl-edge, or which, with the means provided by law, he could not have produced before the judgment;

xvi. where the judgment was the effect of an error resulting from the proceedings or documents of the cause; or

xvii. where the judgment imposes a fine or a penalty upon the judg-ment debtor, or in any other way would have the practical effect of enforcing a foreign penal, revenue or other public law.

These challenged may be made by the defendant in proceed-ings instituted for the enforcement of the foreign judgment.


Malta is a party to various multilateral conventions which contain provisions regulating the recognition and enforcement of foreign judgments relating to specific subject matters, including, amongst others the Cross-Border Insolvency Regulations 2006 (SI 2006/2013), the Civil Aviation Act 1982 and the Carriage of Goods by Road Act 1965.


The defendant is entitled to challenge enforcement of a foreign judgment on the basis that the judgment conflicts with a previous one given in an action on the same subject matter, between the same parties, and constituting res judicata provided no such plea was raised and determined by the court of origin.

If proceedings are ongoing locally between the parties, and one of them seeks enforcement of a foreign judgment on the same issue, the Maltese court is likely to stay the Maltese proceedings until the request to recognise and enforce the foreign judgment is determined.


The existence of a conflicting local law or prior judgment on the same or similar issue between different parties would not hinder recogni-tion and enforcement of the foreign judgment, as long as this does not amount to an incompatibility with Maltese public policy rules.


A Maltese court would not treat such a judgment any differently

Recognition is giving the foreign judgment the same effect in Malta as the judgment has in the country where it was decided. There is no formal procedure for the recognition of judgments. A party can rely on a foreign judgment to prevent a claim already decided by a foreign court from being made in Malta; or, alterna-tively, to support a new claim made in Malta on the basis of the legal situation created by that foreign judgment.

Enforcement is generally understood as the process of executing the judgment, therefore once a judgment has been recognised, it can then be enforced in Malta in the same way as a domestic judgment, providing full access to the available enforcement measures under Maltese law.


The party seeking enforcement must file an application before the First Hall Civil Court in Malta, containing an explanation of the facts of the case and a demand for an enforcement order, along with a certified copy of the foreign judgment and a trans-lation in either the Maltese or English language, along with evidence that the judgment constitutes a res judicata. Any refer-ences to currency must be converted to Euros. Proceedings must be served upon the opposing party, and both parties have the right to make written and oral submissions. Once a judg-ment is delivered by the competent court, this is open to appeal.


Recognition and enforcement of a judgment may be challenged on the following grounds:i. if the recognition of the judgment is manifestly contrary to

public policy in Malta;ii. where the judgment was given in default of appearance

of the defendant and he was not served with the docu-ment which instituted the proceedings or with an equiv-alent document in sufficient time and in such a way as to enable him to arrange for his defence, unless such defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

iii. if the judgment is irreconcilable with a judgment given between the same parties in Malta;

iv. if the judgment is irreconcilable with an earlier judgment given in Malta or another country involving the same cause of action and between the same parties;

v. where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party;

vi. where the sworn application was not served on the party cast, provided that, notwithstanding such omission, such party shall not have entered an appearance at the trial;

vii. where any of the parties to the suit was under legal disa-bility to sue or be sued, provided no plea thereto had been raised and determined by the court of origin;

viii. where the judgment was delivered by a court having no juris-diction in terms of Article 741(a) of the COCP, provided no plea thereto was raised and determined by the court of origin;

ix. where the judgment contains a wrong application of law, consisting of an application of the wrong legal provision, rather than a misinterpretation of the correct provision;

x. where the judgment was given on any matter not included in the demand;

xi. where the judgment was given in exceed of the demand;xii. where the judgment conflicts with a previous judgment


155GVZH Advocates



In accordance with Article 3 of the British Judgments (Reciprocal Enforcement) Act, registration of foreign judgments may be challenged on the following grounds:i. where the original court acted without jurisdiction;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 appear or otherwise submit, or agree to submit to the juris-diction of that court;

iii. where the judgment debtor, being the defendant, was not duly served with the process of the original court, and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that 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

either that an appeal is pending, or that he is entitled, and intends to appeal against the judgment; or

vi. where the judgment was in respect of a cause which for reasons of public policy or for some other similar reason could not have been entertained by the registering court.

4 Enforcement


A judgment creditor of a foreign judgment may proceed with filing a precautionary warrant even before the commence-ment of enforcement proceedings, provided that the relevant provisions of the COCP are satisfied. The application must be confirmed on oath by the applicant and must contain a descrip-tion of the 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 precautionary warrants/acts include the following:i. the warrant of description;ii. the warrant of seizure;iii. the warrant of seizure of a commercial going concern;iv. the garnishee order;v. the warrant of impediment of departure;vi. the warrant of arrest of aircraft; andvii. the warrant of prohibitory injunction.

Once a decision to enforce the foreign judgment is obtained, the following executive acts may be resorted to which include the following:i. the warrant of seizure of movable property;ii. the warrant of seizure of immovable property;iii. the warrant of seizure of a commercial going concern;iv. judicial sale by auction of movable or immovable property

or of rights annexed to immovable property;v. executive garnishee order;vi. the warrant of arrest of sea vessels;vii. the warrant of arrest of aircraft; andviii. the warrant in procintu.

Moreover, a judgment declaring a foreign judgment enforce-able in Malta, once registered in the Public Registry Office, creates a hypothec in relation to the debt judicially acknowl-edged by the foreign judgment, from the day of registration.

and would not carry out any review of the referenced Maltese law.


Private international law rules apply to the entire Maltese juris-diction indiscriminately.


There is no limitation imposed by law.



The British Judgments (Reciprocal Enforcement) Act, Chapter 52 of the Laws of Malta provides for the enforcement of judg-ments obtained in any civil or commercial proceedings before a superior court in the United Kingdom, whereby a sum of money is made payable. These judgments may be registered in Malta if the Maltese Court of Appeal considers the judgment to be just and convenient to be enforced in Malta. Thus, the Maltese court retains the right to refuse the enforcement of the judg-ment if it deems that such enforcement would not be “just and convenient”.

Registration of such judgments pursuant to this regime is optional, since, in most cases, the judgment will also be enforce-able pursuant to the Brussels I Recast Regulation.


The British Judgments (Reciprocal Enforcement) Act requires registration of judgments before enforcement can be proceeded with.


An application for registration must be tabled before the Court of Appeal within 12 months from the date of the judgment. The Court of Appeal has the discretion to extend such time period. In practice, the applicant must present an authenticated copy of the relevant foreign judgment, with a declaration that it consti-tutes a res judicata. The application must specify the grounds for enforcement, the amount in respect of which the foreign judg-ment remains unsatisfied and the amount of interest claimed.


156 Malta


Such hypothec effectively constitutes a security on the entirety of the assets in Malta (present and future) of the judgment debtor and would also provide preferential ranking in any wind-ing-up proceedings of the judgment debtor.

5 Other Matters


No, there have not.


Pending determination of an application of an enforcement of a foreign judgment, it would be advisable to seek interim relief or security by virtue of a precautionary act.


157GVZH Advocates


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 redundancies as well as 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 Advocates192 Old Bakery StreetValletta, VLT 1455Malta

Tel: +356 2122 8888Email: [email protected]: www.gvzh.com.mt

GVZH Advocates is a modern and sophisticated legal practice based in Valletta, Malta, composed of 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.com.mt

Dr. Ariana Falzon was awarded her warrant 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 inter-national 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.



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 has 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.




Chapter 27158

Myanmar

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

Myanm

ar


(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud; or(f ) where it sustains a claim founded on a breach of any law in

force in the Union of Burma.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 pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

The form of plaint for a foreign judgment (Form No. 11 of Appendix A to the First Schedule of the CPC) requires the plain-tiff to set out a specific amount due from the defendant. This suggests that the Myanmar courts would only enforce monetary judgments, at least from a procedural perspective, and that judg-ments in rem, such as relating to injunctions, including foreign asset freezing orders and specific performance, would not be enforced. In particular, section 16 of the CPC provides that all cases involving immovable property in Myanmar must be insti-tuted domestically in Myanmar.


Please see the answer to question 2.2.


In general, every court in Myanmar (excluding the Supreme Court of the Union, which is the apex court) has jurisdiction in 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 10 million, District Courts up to MMK 1,000 million and no limits apply to the High Courts.

In addition to such pecuniary limits, the Myanmar courts must have jurisdiction over the defendant, or the cause of action as required by section 20 of the CPC. This requires that (a) the judg-ment debtor (against whom the judgment is to been enforced) must, at the time of commencement of the suit, be resident, or must have carried on business or personally worked for gain in Myanmar, (b) the judgment debtor, who does not reside or carry on business or personally work for gain in Myanmar, submits to the jurisdiction of the Myanmar courts, or (c) the foreign judgment must be obtained based on a cause of action that arose wholly or partly in Myanmar.

1 Country Finder





Arbitration Act 2016.

Signatories to the New York Convention.

Section 4(b), 31(a), 45, 46.

2 General Regime


A person seeking to enforce a foreign judgment in Myanmar must file a suit in Myanmar, as plaintiff, against the judgment debtor, as defendant. There is no specific procedure for a suit brought on a foreign judgment and the suit would, as with all other suits, be initiated by presenting a plaint, which would typi-cally refer to the amount awarded in the foreign judgment as a 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 attachment and sale of any property, by arrest and detention in prison, garnishee order and application for examination of judgment debtors.


Section 13 of the Civil Procedure Code (1908) (“CPC”) provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, or between parties under whom they or any of them claim, liti-gating under the same title, except:(a) where it has not been pronounced by a court of competent

jurisdiction;(b) where it has not been given on the merits of the case;(c) where it appears on the fact of the proceedings to be

founded on an incorrect view of international law or a refusal to recognise the law of the Union of Burma in cases in which such law is applicable;


159Allen & Gledhill (Myanmar) Co., Ltd.


primacy to a prior foreign judgment between the parties which may be recognised under Myanmar law.


There have not been many instances of foreign judgments being enforced in Myanmar in recent history and there are no known cases relevant to this particular issue.

Explanation VI to section 11 of the CPC explains that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Unless Explanation VI applies to the different parties, section 11 would not apply to stop the court from enforcing the foreign judgment.


There have not been many instances of foreign judgments being enforced in Myanmar in recent history and there are no known cases relevant to this particular issue.

Unless the foreign judgment falls within one of the exceptions set out in section 11 of the CPC, there is no bar to enforcing the judgment in Myanmar.


No, there are no differences in the rules and procedure of recog-nition within Myanmar.


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 the Limitation Act 1908.



The arbitral award has to be made outside Myanmar but inside the territory of member countries of the New York Convention according to the arbitration agreement.

Section 46(b) of the Arbitration Law provides that the court may refuse to recognise and enforce a foreign award, if any of the following in submission for recognition and enforcement of foreign award can be proved by the respondent:


There is no distinction drawn in the CPC.


The judgment creditor must commence a civil action by filing a plaint in the appropriate Myanmar court, as plaintiff, against the judgment debtor, as defendant. When a plaint has been filed, a summons is served upon the defendant requesting the defendant to appear and answer the claim. The defendant has to submit a written statement answering the specific claims made in the plaint.

If the court is satisfied that no further argument or evidence than the parties can at once adduce is required as may be suffi-cient for the decision of the suit and that no injustice will result from proceeding with the suit, the court may make a determi-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.


Please refer to question 2.2. If enforcement is resisted on these grounds, they should be set out in the written statement filed by the judgment debtor in response to the plaint.


There is no distinction drawn between foreign judgments relating to specific subject matters.


There have not been many instances of foreign judgments being 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 not try any suit or issue in which the matter directly or substan-tially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation I of the aforementioned section explains that the expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

The application of section 11 of the CPC is in respect of 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 in time to the conflicting local judgment; and (b) likely to accord


160 Myanmar



Similarly to question 2.6 above, the judgment creditor would have to commence proceedings by filing a plaint in the appro-priate Myanmar court. The plaint should comply with the requirements under section 45 of the Arbitration Law, as set out in question 3.1 above.


Please refer to question 3.1. If enforcement is resisted on these grounds, they should be set out in the written statement filed by the judgment debtor in response to the plaint.

4 Enforcement


The usual methods of enforcement applicable to a judgment issued by the Myanmar court will apply:(a) to attachment and sale of any property;(b) to examination of the judgment debtor on his property; (c) to application for garnishee orders requiring third parties,

such as banks, who are indebted to the judgment debtor to pay the judgment creditor the amount of any debt due or accruing due to the judgment creditor in satisfaction of the judgment;

(d) by arrest and detention in prison; and(e) to commencement of insolvency (against individuals)

or winding-up (against companies) proceedings, where applicable.

5 Other Matters


No, there have not been any recent legal developments to the recognition and enforcement of foreign judgments in Myanmar.


It would appear that foreign arbitral awards (from member coun-tries of the New York Convention) may be enforced more easily than foreign judgments. Therefore, in dealing with parties who are resident in Myanmar or have assets in Myanmar, parties should consider agreeing to arbitration in a member country of the New York Convention.

(1) a party to the arbitration agreement was, under the law applicable to them, under some incapacity;

(2) the arbitration agreement is not valid under the law to which the parties have subjected it, or in the absence of any indication in that respect, under the law of the country where the award was made;

(3) the party was not given proper notice of the appoint-ment of the arbitrator, or the arbitration proceedings were not carried out properly or the respondent was otherwise unable to present its case in the arbitration proceedings;

(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 the submission to arbitration;

(5) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accord-ance with the law of the country where the arbitration took place; or

(6) the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

Section 46(c) further provides that the court may refuse to enforce the award if it finds that: (1) the subject matter of the dispute is not capable of settle-

ment by arbitration under the law of the State; or(2) the enforcement of the award would be contrary to the

public policy of the State.Section 46(d) provides that where the court is satisfied that

an application for the setting aside or for the suspension of the award has been made to a competent authority referred to in subsection (b) of section 46, the court may, if it considers proper to do so, postpone the order to enforce the award and may also order the respondent to provide appropriate security on the application of the party claiming enforcement of the award.

Section 45 of the Arbitration Law provides that the party 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 was made;

(2) the original arbitration agreement or an authorised copy thereof; and

(3) such evidence as may be necessary to prove that the award is a foreign award.

Further, where the award or arbitration agreement requiring to be produced is in a foreign language, the party seeking to enforce the award shall produce a translation into English certi-fied as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in the Union of Myanmar.


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


161Allen & Gledhill (Myanmar) Co., Ltd.


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 Organisation (WTO) member states.Minn graduated from the National University of Singapore with an LL.B. (Hons) 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.Junction City Tower, #18-01 Bogyoke Aung San Road Pabedan Township, Yangon Myanmar

Tel: +95 1 925 3719Email: [email protected]: www.allenandgledhill.com

Allen & Gledhill (Myanmar) is the Myanmar office of one of South-east Asia’s leading and largest law firms, Allen & Gledhill. Based in Yangon, we are a fully licensed law firm which provides Myanmar legal and tax advice, and issues Myanmar legal opinions. Our 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 our clients. Allen & Gledhill (Myanmar) is led by Minn Naing Oo, a Singapore and New York qualified lawyer fluent in the Myanmar language. Minn has well-established connec-tions in the Myanmar business community and experience advising both foreign investors and local businesses on their projects in Myanmar. Operational since 2014, Allen & Gledhill (Myanmar) has gained an excellent reputation for advising local conglomerates and organisations as well as international clients across diversified industry sectors and was awarded IFLR Asia Awards Most Innovative National Firm of the Year (Myanmar) 2018. Allen & Gledhill (Myanmar) also regularly receives top-tier rankings in IFLR1000, Chambers Global, Chambers Asia-Pacific and The Legal 500 Asia Pacific.

www.allenandgledhill.com



Chapter 28162

Netherlands

Van Oosten Schulz De Korte Jurjen de Korte

Netherlands

If no treaty applies: art. 431 Dutch Code of Civil Procedure

Cases where no treaty applies

Section 2

2 General Regime


If no treaty applies, the recognition and enforcement of a foreign court judgment in civil and commercial matters is governed by art. 431 of the Dutch Code of Civil Procedure.


In general: a decision on the merits in a civil or commercial dispute. Some treaties provide explicitly that they do not apply to judgments of certain forums (e.g. administrative bodies) or in certain forms (e.g. penalties, provisional and protective meas-ures) or on certain subjects (e.g. employment, product liability, consumer protection). Despite such treaty exclusions, recogni-tion and enforcement may still be possible under the general regime of art. 431 of the Dutch Code of Civil Procedure. It is still to be tested whether, absent an applicable treaty, a foreign court judgment imposing an administrative penalty (e.g. penal-ties imposed by a foreign anti-trust authority) may qualify in the Netherlands as a foreign court judgment in a civil or commer-cial matter, especially since under Dutch law an administrative penalty creates a civil liability (art. 4:124 Awb).


A complete and authenticated copy of the foreign judgment and a legal opinion confirming enforceability of the judgment in the country of origin is usually sufficient in terms of evidence. Unless an applicable treaty (e.g. the 1961 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents) provides otherwise, the court may require those documents to be legalised and to be translated into Dutch by a sworn translator.

1 Country Finder





Direct effect of judgments within the Kingdom of the Netherlands: art. 40 Statute

ArubaCuraçaoSint Maarten

N/A

Bilateral treaties Belgium (1925) Italy (1959)Germany (1962)Austria (1963)United Kingdom (1967) Surinam (1976)

Section 3

Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (1971)

AlbaniaCyprusKuwaitPortugal

Section 3

Hague Convention on Choice of Court Agreements (2005)

Denmark EU Member StatesMexicoMontenegroSingaporeUnited Kingdom and Gibraltar (in case of Brexit)

Section 3

Multiple trea-ties with relatively narrow scope (e.g. child support, transport by air, by road, by rail)

Dependent on the treaty

Section 3


163Van Oosten Schulz De Korte


(i.e. absent an applicable treaty), there are no additional require-ments for specific subject matters. The Netherlands is a member of a number of treaties on the recognition and enforcement of foreign judgments, some with a relatively broad scope and some with a relatively narrow scope (for instance: child support, ship-ping, transport by road, by air and by rail). Significant differ-ences may apply depending on the applicable treaty.


A conflicting local judgment between the parties relating to the same issue is a ground for refusal (see under question 2.7 (iv)). Local proceed-ings pending between the same parties may be a ground to suspend the proceedings pending the outcome of the local proceedings.


Recognition and enforcement of a foreign judgment may be refused if that would violate Dutch public order (for example, U.S. treble damages). Certainly not every conflict with Dutch laws and regu-lations or with an earlier judgment between other parties amounts to a potential violation of Dutch public order. If the foreign judg-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 the Dutch legal system as much as possible. As regards cases 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, there is no system of binding precedent in the Netherlands.


A Dutch court will not, in principle, review the merits of the foreign judgment, and that is no different if the foreign court has applied Dutch substantive law. However, recognition and enforcement of a foreign judgment may be refused if that would violate Dutch public order.


No, there are not.


In the 2014 Gaz prombank decision, the Dutch Supreme Court held that expiration of a leave to enforce in and under the laws of the country of origin is no cause to refuse recogni-tion and enforcement in the Netherlands of that foreign judg-ment. In other words, the foreign statute of limitations is of no


None of the parties needs to be domiciled or to even have assets in the Netherlands for recognition and enforcement of a foreign judgment. Reciprocity (i.e. recognition of judgments of Dutch courts in the country of origin) is also not a requirement.


If the foreign judgment concerns the establishment of a certain status (e.g. divorce), it is sufficient to seek recognition of that status but it is not necessary to also seek court leave to enforce in the Netherlands. If the foreign judgment concerns an order to perform a certain act (e.g. make a payment, transfer title), one should not only seek recog-nition of the foreign judgment but also seek from the Dutch courts leave to enforce.


Even though the procedure of art. 431 of the Dutch Code of Civil Procedure (i.e. absent an applicable treaty) does not formally entail recog-nition or enforcement of a foreign state court judgment, it does in effect result in giving binding effect in the Netherlands to a foreign court judg-ment. If no treaty applies, then art. 431 of the Dutch Code of Civil Procedure 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. Depending on the subject matter and amount of the claim, the proceedings are initiated either at the Kantongerecht or the District Court in the first instance. The proceedings are initiated by summons (dagvaardingsprocedure) and are inter partes, the outcome of which is subject to appeal and cassation.


Recognition and enforcement may be refused if (i) the foreign 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) recogni-tion and enforcement would violate Dutch public order, (iv) 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 that is recognis-able in the Netherlands, (vi) the foreign judgment is by its terms not, no longer or not yet enforceable, or (vii) the foreign judgment has already been satisfied. It is up to the judgment creditor to establish that the foreign judgment is by its terms enforceable in the country of origin (under (vi)), while other grounds for refusal may be raised by the Dutch courts ex officio (e.g. violation of Dutch public order) or have to be asserted and evidenced by the judgment debtor. The judgment debtor must be given an opportunity to be heard before the request for recognition and enforcement is decided upon.


Under the regime of art. 431 of the Dutch Code of Civil Procedure


164 Netherlands


are inter partes. The decision of the District Court is subject to appeal (within one month, unless an exception applies). The deci-sion of the Court of Appeal is subject to cassation appeal at the Supreme Court (within one month, unless an exception applies). Unless the court decides otherwise, a leave to enforce is not suspended by the mere lodging of an appeal or cassation appeal.


Although the grounds for refusal are formulated differently in the various treaties, they typically include some form of the following grounds for refusal: (i) the foreign 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) recognition and enforcement would violate Dutch public order; (iv) the foreign judgment is incom-patible with a Dutch judgment between the same parties; (v) the foreign judgment is incompatible with an earlier foreign judgment between the same parties that is recognisable in the Netherlands; (vi) the foreign judgment is by the terms of that judgment not, no longer, or not yet enforceable; or (vii) the foreign judgment has already been satisfied. Some treaties define additional cate-gories for refusal, such as invalidity of or lack of capacity to enter into the agreement giving rise to the foreign judgment, or fraud in the foreign court proceedings. Under most treaties, it is up to the judgment creditor to establish that the foreign judgment is by its terms enforceable in the country of origin (under (vi)) while other grounds for refusal may be raised by the Dutch courts ex officio (e.g. violation of Dutch public order) or have to be asserted and evidenced by the judgment debtor. The Dutch courts will not review the merits of the foreign judgment.

4 Enforcement


All physical actions pursuant to a leave to enforce (other than imprisonment) can only be initiated by a bailiff (deurwaarder). The bailiff may enlist the assistance of the police. The avail-able actions include collection of receivables (e.g. trade receiv-ables, bank balances, insurance proceeds) and involuntary sale of stock, inventory and other movables, real estate and shares. Certain assets may be immune from enforcement (e.g. certain foreign state-owned assets) or subject to a special regime (e.g. aircraft) and certain enforcement actions may amount to an abuse of right (e.g. satisfaction of the claim can also be achieved in a way that is substantially less burdensome to the debtor). Judgments other than payment orders may be strengthened with a mone-tary penalty (dwangsom). In extreme circumstances, a person may be imprisoned as long as the judgment is not satisfied (lijfsdwang).

5 Other Matters


The Hague Convention on Choice of Court Agreements (2005) will enter into force between the Netherlands and United

consequence for the recognition and enforcement of a foreign judgment in the Netherlands. That decision has raised the ques-tion whether the Dutch statute of limitations or no statute of limitations at all applies to recognition and enforcement of a foreign state court judgment in the Netherlands. In any event, the limitation period of a Dutch court leave to enforce (including a court leave to enforce a foreign court judgment) is 20 years.



The answers in this section do not necessarily apply under EU Regulations and the Lugano Treaty.

The procedural rules applicable to seek recognition of and leave to enforce a foreign judgment in the Netherlands on the basis of a treaty are set out in arts 985–990 of the Dutch Code of Civil Procedure.

The request should be accompanied by a complete and authen-ticated copy of the foreign judgment and evidence of formal enforceability in the country of origin. Unless an applicable treaty (e.g. the 1961 Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents) provides otherwise, the court may require those documents to be legalised and to be translated into Dutch by a sworn translator. Some of the trea-ties that the Netherlands is party to also require that the foreign judgment cannot or can no longer be appealed in the country of origin, and evidence of the same. Some treaties require, for the recognition and enforcement of a foreign default judgment, that the party seeking recognition and enforcement thereof evidences proper notification of the initiation of the foreign proceedings to the defendant. In addition, the party seeking recognition and enforcement in the Netherlands must evidence that the coun-terparty was properly notified of the request to recognise and enforce the foreign judgment.

Some points to note with respect to the Hague Convention on Choice of Court Agreements (2005) are that it only applies in case of an exclusive choice of court of a Member State, if that agreement was concluded after the convention entered into force and if the proceedings were instituted after the convention entered into force.


Even though arts 985–990 of the Dutch Code of Civil Procedure formally only apply to treaty-based requests for enforcement of a foreign judgment, some authorities hold that these provisions may also (have to) be followed for a treaty-based request to recognise a foreign judgment. Some of the treaties referred to do not apply to recognition of foreign judgments as to a certain status.


The request should be filed at the District Court. The proceedings


165Van Oosten Schulz De Korte


exclusive choice of court of a Member State, if that agreement was concluded after the convention entered into force and if the proceedings were instituted after the convention entered into force. The United Kingdom has also made a reservation with respect to certain (re)insurance matters under that treaty. In comparison, the 1967 bilateral treaty between the United Kingdom and the Netherlands has a wider scope.

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 merits have to be initiated abroad (provided there is a treaty in force between the Netherlands and that foreign country on enforcement of judgments). In most instances, court leave to effect such attachment can be obtained ex parte, within a matter of hours, without the need to post a bond and on the basis of a prima facie showing of a claim. None of the parties needs to be domiciled in the Netherlands. The attachment of assets in the Netherlands can in certain situations even be used to create jurisdiction of the Dutch state courts to hear the case on the merits (i.e. if proceedings would otherwise need to be initiated in a foreign country with which the Netherlands has not entered into a treaty on the enforcement of judgments).

Kingdom and Gibraltar in case the United Kingdom ceases to be a member of the EU.

On 18 January 2019, the Dutch Supreme Court confirmed that the 1 August 2006 judgment of the Moscow Arbitrazh Court declaring Yukos Oil bankrupt cannot be recognised in the Netherlands as that would violate Dutch public order.

On 2 July 2019, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters was adopted in the Hague, the Netherlands, and signed by Uruguay. This treaty has not yet entered into force.


In case the United Kingdom ceases to be a member of the EU, not only the Hague Convention on Choice of Court Agreements (2005) should be considered for recognition and enforcement of judgments between the Netherlands and the United Kingdom but also the 1967 bilateral treaty. The Hague Convention on Choice of Court Agreements (2005) only applies in case of an


166

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 at the 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 KorteVondelstraat 411054 GJ AmsterdamThe Netherlands

Tel: +31 20 6060 680Email: [email protected]: www.vosdk.nl

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 sanc-tion law, business and corporate law, commercial contracts and transac-tional 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


Netherlands


Chapter 29 167

Nigeria

Roberts & Shoda Abolanle Davies

Adeniyi Shoda

Nigeria


2 General Regime


In the absence of any special legal framework or where for some reason the Act and Ordinance are not applicable, Common Law (inherited by Nigeria as a former colony of England) would be the channel through which foreign judgments are enforced.

The judgment becomes the cause of action in a fresh suit filed under the summary judgment proceedings and the Judgment Debt would be deemed to be a liquidated sum due from the Judgment Debtor to the Creditor.


The judgments that the Nigerian Court will recognise and enforce are judgments or orders of superior courts given or made in any proceedings including civil and criminal proceedings and awards of arbitration proceedings if such an award by virtue of the law in force in that country has become enforceable in the same manner as a judgment given by a superior court in that country. Enforcement of judgments in criminal proceedings is only in respect of payment of compensation or damages to an injured Party.

By Section 2 of the Act, an Arbitral Award can only be recog-nised and enforced in Nigeria if it can be enforced in the foreign country as a judgment of a superior court of that country. By inference, the award must have the status of a judgment of the superior court of that country. Usually the award may have the status of a judgment of court when it has been by registered in the superior court of that country as its judgment or applying for and getting leave of court to enforce the award as the judgment of the foreign court. The ACA by Section 51 went a step further by allowing for the recognition and enforcement of the Arbitral Award by the Nigerian Court without necessarily registering it in the foreign court. The Award must, however, be one that is enforceable by the superior court of that country.

Note: Nigeria is under no treaty to recognise and enforce any foreign judgment of court from any nation. However, Nigeria is a Party to the New York Convention and is under covenant to enforce Arbitral Awards from member nations.

Enforcement under the ACA requires that the Party relying on an award or applying for its enforcement pursuant to this Act shall supply the following:a) the duly authenticated original award or a duly certified

copy;

1 Country Finder





Reciprocal Enforcement of Judgments Act 1922, Chapter 175, Laws of the Federation and Lagos 1958 (the Ordinance)

England, Ireland, Scotland, Ghana, Gambia, Sierra Leone, Barbados, Bermuda, British Guiana, Gibraltar, Grenada, Jamaica, Leeward Islands, Newfoundland, New South Wales, St. Lucia, St. Vincent, Trinidad and Tobago and Victoria

Section 2

Foreign Judgments (Reciprocal Enforcement) Act, Chapter F35, Laws of the Federation of Nigeria 2004 (the Act)

All the coun-tries listed above, and other foreign jurisdictions

Section 3

Common Law All foreign jurisdictions

Arbitration and Conciliation Act, Chapter 18, Laws of the Federation of Nigeria 2004 (the ACA)

All International Arbitral Awards

Sections 51 and 52

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958 (the Convention)

All signatories to the treaty

Sections 2 and 3


168 Nigeria


enforced within 12 months from the date it was delivered. In Teleglobe America Inc v. Century Technologies Ltd (2009) CLRN 9, 32, the Court of Appeal decided that since “There is nothing placed by this court to show that there is an Order by the Minister of Justice extending the provision of part 1 of the Reciprocal Act to Judgments given in United States. The applicant therefore has twelve months from the date of the Judgment within which to register it in Nigeria”. The applica-tion period might have been six years if the United States had been a member of the privileged jurisdictions.

Aside from the privilege of the time within which the foreign judgment was delivered and the time it is registered, there is no special preference enjoyed by any nation above another in Nigeria. As stated earlier, even the time for registration of the judgment can (subject to the court’s discretion) be extended.


There is a difference between recognition and enforcement of judgments in Nigeria.

A foreign judgment cannot be enforced if it has not been recog-nised in Nigeria whereas the only way a foreign judgment can be recognised is by way of registration. The judgment must first be registered in the High Court of any State or the Federal High Court of Nigeria, depending on the subject matter of the judgment.

Some judgments may only be recognised without enforce-ment just to set the records straight and to prevent re-litigation. The recognition of such sounds a caveat that the matter had been heard and determined by a (foreign) court that had jurisdic-tion to hear the suit. This is the principle of res judicata.

After the judgment had been registered, the Judgment Creditor may employ any available channel of enforcement against the Judgment Debtor. Some common means of enforce-ment in Nigeria are through garnishee proceedings, attachment of property by execution of a writ of fieri facias, writ of attach-ment and writ of sequestration.

The registered judgment is listed in the Register of Judgments of the Court and it can be enforced and appealed against as any other judgment of the court. Appeals only lie on the propriety of the recognition of the judgment or the propriety of the enforce-ment without recourse to re-determining the substantive suit.


There are two distinct procedures to adopt in order to get a foreign judgment recognised and enforced in Nigeria.

By Registration under the Act and Ordinance:This procedure is followed where the judgment:i. emanated from a country with reciprocal judgment

enforcement with Nigeria;ii. was delivered within 12 months from the time it is sought

to be registered in Nigeria or six years for jurisdictions where Part 1 of the Act applies;

iii. was delivered by a superior court of the foreign State; and/oriv. is a monetary judgment which has not been satisfied and

which is not a tax, fine or penalty.The Judgment Creditor applies to the court by an ex parte

application praying the court for leave to register the foreign judgment. Under the Ordinance, the application for registration process is usually brought by way of a Petition or an Originating Motion.

b) the original arbitration agreement or duly certified copy thereof; and

c) where the award or arbitration agreement is not made in the English Language, a duly certified translation thereof into the English Language.


Before a foreign judgment can be recognised and enforced in Nigeria, it must satisfy the listed requirements below:■ the judgment is made by a superior court in the foreign

country;■ the court had (personal and subject matter) jurisdiction to

hear and determine the matter; and■ it is final and conclusive as between the Parties thereto.

This does not preclude the rights of the Parties to appeal the decision. Therefore, the pendency or possibility of submission of the judgment to appeal does not make it inconclusive or less than a final judgment. ■ The judgment is in respect of a definite sum of money

which shall not be a fine, penalty or tax against the Judgment Debtor.

■ The Nigerian Minister of Justice considers that the foreign country will reciprocate the recognition and enforcement of Nigerian judgments and has in fact made an order that judgments from that foreign country be recognised and enforced.

The Minister has not made any order in this light but since the requirements are several and not joint, recognition and enforce-ment are still possible and in fact done on the premise of other available grounds. Such as:■ the judgment is not against public policy; ■ the Judgment Debtor was given sufficient notice of the

proceedings and was given adequate rights to defend the suit;

■ the judgment must be registered in Nigeria within 12 calendar months from the date of its delivery subject to the discretion of the court to extend the time;

■ the judgment must not be older than six years if it is a judgment from foreign countries where Part 1 of the Act applies;

■ there is no ex facie irregularity of the judgment in form or substance; and/or

■ the judgment has not been fully satisfied.


Judgments from all jurisdictions can be recognised and enforced in Nigeria.

Under the Act, however, judgments from countries listed in Part 1 of the Act should be given full accord of judgment recog-nition and enforcement reciprocity. Regrettably, no country has been granted such fellowship by the Nigerian Minister of Justice. By Section 9 of the Act, Part 1 status was extended to some Commonwealth jurisdictions. As such, judgments of the courts of the United Kingdom, Ireland, and courts of other parts of Her Majesty’s dominions and territories can be regis-tered and enforced under the Act even though such judgments have not been listed under Part 1 of the Act.

Other foreign countries that are not Commonwealth nations must register the foreign judgment which is sought to be


169Roberts & Shoda



The Act defines superior courts in Nigeria as “the High Court of a State or of the Federal Capital Territory, Abuja or the Federal High Court”. These are the courts of first instance where foreign judgments are registered and enforced.

Section 251 of the Constitution of Nigeria specifically earmarks some subject matters to the exclusive jurisdiction of the Federal High Court; for example, admiralty, patents, copy-right, companies related matters, arms, drugs, aviation, bank-ruptcy, etc. With respect to admiralty, the Admiralty Jurisdiction Act lists subject matters the jurisdiction of the Federal High Court can attain, whereas a closer appreciation of the Admiralty Jurisdiction Act leaves us with many areas of admiralty that were not listed in the Act. In good clarification of this subject, Section 1(3) of the Constitution provides that in the event of a conflict between any law and the Constitution, the Constitution will prevail. To this end, the Federal High Court still retains its exclusive jurisdiction over admiralty matters.

Apart from the items specifically earmarked for the Federal High Court of Nigeria, the High Court of a State has jurisdiction to entertain all applications for recognition and enforcement of foreign judgments. It is advisable, however, that the Court that has complete jurisdiction over the subject matter should be chosen by the Creditor when seeking to register the foreign judgment.


The Nigerian Court will not recognise the foreign judgment sought to be recognised in Nigeria if the judgment is between the same Parties, subject matter and facts and the Nigerian judg-ment was delivered before the foreign one.

The position will differ if the foreign judgment was initiated before the Nigerian matter was commenced. The defaulting Party, being the Party who initiated the suit during the pendency or after the determination of the same issue by a foreign court, may be liable for abuse of court process.

The foreign judgment itself must be one that was not obtained by fraud. Some facts that the court will consider are whether or not the defaulting Party was served with the proceedings of the foreign suit. The Nigerian judgment may not be set aside where there is sufficient proof that the Judgment Debtor did not know of the foreign suit and the said judgment was delivered in his absence (without notice issued to him) or where he had refused to submit to the jurisdiction of the foreign court.

In pending matters, the first in time will prevail though the Party who sought to abuse the process of court may be held liable. Therefore, the Nigerian Court may not honour such a foreign judgment if the matter had been properly initiated in Nigeria before it was in that foreign country.


Where there is a local enactment against which the foreign judg-ment runs, the Nigerian Court will not recognise the foreign judgment.

The court may mandate the Creditor to put the Debtor on notice of the pending application which avails the Debtor the right to contest the application in the first instance. The Motion may equally pray the court for an extension of time to register the judgment if it has exceeded the 12-month limitation time granted by law. The Motion will be supported by an Affidavit which shall contain the details of the Deponent, the source and extent of his knowledge of the judgment sought to be regis-tered, that the judgment is not at variance with Section 3(2) of the Ordinance – it was not gotten by fraud, it is not contrary to public policy, and a host of other averments. The judgment shall be attached to the Motion as an Exhibit.

After hearing the application of the Applicant/Creditor and the counter-response from the Respondent/Debtor, the court will determine whether or not to register the judgment. Where the court grants the application to register the judgment (in the absence of the Judgment Debtor), the order of court shall contain the time within which the Judgment Debtor may apply to set aside the order. The time is not fixed but starts from 14 days depending on the location of the Judgment Debtor.

By Enforcement at Common Law:Where by some reason, usually of expiration of the time allowed, the foreign judgment cannot be registered, the Judgment Creditor may institute a suit under the Common Law for the enforcement of the judgment.

By this procedure, the Creditor commences the suit in the High Court of a State or the Federal High Court of Nigeria. He files a Writ of Summons (which is the generally accepted orig-inating process in Nigeria) or an Originating Summons since the suit is in respect of a liquidated sum which will not likely be controverted.

Depending on the Nigerian State where registration is sought, the Creditor may proceed under the Summary Judgment proce-dure or the Undefended List procedure. Both procedures are adopted for recovery of liquidated sums that will not likely be contested.

The judgment will be the cause of action so recourse will not be to the substantive dispute between the Parties.

After the recognition of the judgment, any suitable enforce-ment mechanism may be adopted to enforce the judgment.


Challenge against the recognition/enforcement of a foreign judgment should be made at the earliest time possible; prefer-ably at the instance the Debtor is put on notice of the application to register the judgment in Nigeria.

The recognition/enforcement can be challenged if:i. the foreign court lacked jurisdiction to entertain the suit;ii. the judgment was not delivered by a superior court;iii. the judgment was obtained by fraud;iv. the Judgment Debtor was not served with processes of the

suit while it was pending and he did not appear in the suit;v. the judgment is against public policy in Nigeria;vi. the judgment seeks to enforce the payment of money

which is a fine, tax or penalty;vii. the judgment has been wholly satisfied;viii. the attention of the court is drawn to a pending appeal of

the judgment;ix. the judgment is not enforceable in the foreign country; orx. the judgment was delivered more than 12 months before

the application to register it and leave of court for exten-sion of time has not been granted.


170 Nigeria


should be registered in Nigeria not later than 12 months from the day it was delivered.

The Act creates a limitation period of six years for countries listed under Part 1 of the Act but no country has been listed to date. By Section 9 of the Act, the six-year limitation period extends to some Commonwealth jurisdictions.

Where the foreign judgment is sought to be registered by Common Law procedure, the limitation period is usually 10–12 years.



To satisfy the requirement of recognition and subsequent enforcement, the foreign judgment must:a. not be against public policy in Nigeria;b. be over a monetary claim which is not a tax, fine or penalty;c. have been delivered by a superior court of the foreign

country and is enforceable by the superior court of that country;

d. not be tinted with fraud or other manifest irregularities;e. not have been fully satisfied;f. the Judgment Debtor submitted to the jurisdiction of the

foreign court and was served with the necessary court processes to enable him to put up a defence; and

g. not become barred by a limitation of time as discussed in section 2.

When an Arbitral Award is sought to be enforced in Nigeria, it must be registered in the court before it gains recognition and enforcement status. The ACA provides for few more additions to the requirement:a. the arbitration was not under any illegality or incapacita-

tion like illegality of the law upon which the subject matter of the arbitration was based in Nigeria or of the foreign country, incapacity of the Parties under the law, irregu-larity in the composition of the Arbitral panel; and/or

b. the award did not oust the scope of the agreement that created it.


Recognition under all the legal regimes is different from enforce-ment but every judgment that must be enforced must first be recognised and duly registered.

Under the Act, Ordinance and the ACA, recognition is a way of abridging the legal process hence the court having no need to determine the matter on the merit will register the judgment thereby entitling the Judgment Creditor to initiate the enforce-ment process.

Under the Common Law regime, regarding a matter that has been determined on the strength of evidence adduced by Parties in proving their respective cases wherein the foreign judgment is the cause of action, the court delivers its judgment which is then registered in its register. Enforcement of the judgment can then follow.

Although the Nigerian Court will not go into hearing the substantive suit or determine the suit on its merit, it will simply refuse to give recognition to a judgment that contravenes its law. Some examples are enforcement of judgments resulting from transactions on cannabis and some narcotics. The recogni-tion of such a foreign judgment will be considered to be against public policy.

With respect to judgments that are not against the Nigerian law but are at variance with certain decided cases in Nigeria, the position of the court is a bit discretional. First, we must note that a foreign judgment when registered in Nigeria becomes a judgment as good as the judgment of the court that registered it. The court that registers it (at the first instance) is not the apex court so it is bound to follow the decision of higher courts in reaching its own decisions. As such, it may refuse to recog-nise the foreign judgment where it does not manifestly adhere to higher decisions that the registering court is bound by law to follow. The keyword to note here is the manifest disparity.

In most cases, however, since the court does not go to adju-dicate over the matter again, most foreign judgments are recog-nised even though there may be a local judgment contrary to it.


The Nigerian Court will recognise and enforce a foreign judgment that purportedly applied the Nigerian law in determining the matter. As said earlier, the Nigerian Court will not look into the merit of the judgment again. The only qualification it needs to meet is the recog-nition and enforcement status discussed in question 2.3 above.


Yes, there are.First of all, recognition and enforcement of foreign judg-

ments under the Act and Ordinance are the same because recog-nition and enforcement of foreign judgments is a matter exclu-sively subjected to federal legislation. Therefore, the law and procedure that govern the subject matter is the same and applied indifferently nationwide.

But where Common Law procedure is adopted, the rules of the various courts apply. The Federal High Court has a single jurisdiction nationwide; therefore, the same rules and proce-dures apply to all Federal High Courts in Nigeria. As stated earlier, only matters contained in Section 251 of the Constitution can be heard at the Federal High Courts of Nigeria. The choice of the Federal High Courts to institute the action at depends on the forum of convenience for the Parties.

The High Court of the State and the Federal Capital Territory, Abuja entertain most matters regarding recognition and enforce-ment of foreign judgments. There are 36 States in Nigeria, each having its own set of rules and procedures. Along with the Federal Capital Territory, there are 37 distinct set of court rules and procedures to follow depending on where the foreign judg-ment is sought to be registered which usually is the forum of convenience of the Parties.


Subject to the extension of time by the court, a foreign judgment


171Roberts & Shoda


e. the judgment seeks to enforce a fine, penalty or tax;f. the judgment has been fully satisfied;g. there is a pending appeal on the judgment;h. the judgment is sought to be enforced against a third party

distinct from the Parties to the suit; and/ori. the application to register or enforce is brought by a Party

whose interest is not covered by the judgment.

4 Enforcement


Once a foreign judgment has been registered, the general methods to enforce the judgment are:a. Garnishee proceedings.b. Writ of Fieri Facias.c. Writ of Sequestration.d. Judgment Summons.e. Writ of Attachment.

5 Other Matters


The Court of Appeal has clarified the position on the proper originating process with which to register a foreign judg-ment. In two recent cases of Bronwen Energy Trading Ltd v. Crescent Africa (Ghana) Ltd (2018) LPELR-43796(CA) and Heyden Petrolrum Ltd v. Planet Maritime Co (2018) LPELR-45553(CA), the Court established that applications to recognise a foreign judgment in Nigeria should be by way of a Petition and not a Motion on Notice.

The Court of Appeal in its ratio held that though the Act is silent on the most suitable originating process to adopt, the Ordinance is clear that a Petition should be used. And since the Act is more or less a subsidiary legislation to the Ordinance, it should be regulated by the Ordinance.

It flows from the recent judgments also that contrary to earlier notions that the Ordinance and the Act may be applied independently, the Court of Appeal established that the Act is an extension of the Ordinance and both need to be considered in the recognition of foreign judgments.

The Court held that in cases where the application was initi-ated by any other process apart for a Petition, the court of first instance should strike out the application and not dismiss it as it is an irregularity that can be cured by bringing in a fresh appli-cation. Time, however, is of the essence.


A Client who seeks to enforce a foreign judgment in Nigeria should note the following:

a. TimeThe Client should be prompt in seeking recognition of the judg-ment in Nigeria.

The enforcement of a judgment is a separate proceeding from the recognition and registration of the judgment itself. At recognition, the foreign judgment becomes the judgment of the Nigerian Court while at enforcement; the judgment is enforced against the Debtor as though it was delivered by the Nigerian Court.


An application for the recognition and enforcement of a foreign judgment that passes the test for recognition under the Act or Ordinance can be made by:a. Filing an originating process by way of an Originating

Motion or a Petition. The Motion can be made ex parte but the court may insist that the Debtor be put on notice.

b. The application will be supported by an Affidavit prefer-ably deposed to by the Creditor. It shall disclose the details of the Parties and other relevant facts and the Certificate of the Judgment or the certified true copy will be exhibited as an attachment.

c. A written argument will be attached to support the application.

Where the Debtor does not counter the application and where the judgment does not fail the recognition test, the court will grant the application to register the judgment. In the event that the Debtor contests the registration of the judgment (usually within 14 days), the application is set down for a hearing of both Parties. The grounds upon which the Debtor can challenge the registration of the judgment are limited to grounds earlier stated above hence the Debtor cannot challenge the registra-tion on issues that were resolved or supposedly resolved by the foreign court.

A judgment that is sought to be enforced under Common Law will have to go through the adjudication process. The Applicant will institute a fresh suit by way of the applicable originating process and the cause of action will be the judgment sought to be registered. Sufficient time (depending on the rules of the court in question and the discretion of the Judge) will be given for the Debtor to file his defence. Evidence is presented by both Parties and the court will determine the matter based on facts and evidence presented before it.

After registration of the judgment by Common Law or the Act, the enforcement process begins. The Creditor institutes a separate enforcement procedure where the cause of action is the judgment that has been registered.


The recognition and enforcement of a foreign judgment can be challenged at any time but it is advisable it is done at the earliest time possible which is usually the time the Debtor got actual or construc-tive notice of the application to register or enforce the judgment.

The grounds upon which the recognition or enforcement can be challenged are:a. the judgment is against public policy;b. the foreign court lacked personal and subject matter juris-

diction to hear the matter;c. the judgment was obtained by fraud;d. the enforcement of the judgment has been barred by a

limitation of time;


172 Nigeria


c. Public PolicyThe Client should ascertain that the judgment is one that does not run contrary to the Nigerian law or settled public policy in Nigeria.

d. Legal RegimeThe applicable legal regime should be considered: whether the judgment is one that will be registered under the Act or Ordinance or one that will be pursued under the Common Law procedure. Proper legal guidance is required to ascertain this.

e. Right of appealA judgment that is sought to be registered may be one that is still appealable so it is better that the Client verifies if there is a pending appeal on the judgment before he seeks to apply for the recognition and enforcement in Nigeria as this might affect the chances of recognition.

It is, however, possible (notwithstanding the appeal) to apply for recognition of a judgment and make a further application to the Nigerian Court for a Writ of Sequestration in a bid to preserve the res.

It is easier to get recognition and enforcement for a judgment that was delivered within 12 months than it is for older judg-ments or to apply to the court for extension of time to register the judgment. Not many countries will pass the grace period of six years allowed under the Act.

b. Jurisdiction of the Foreign CourtThe Client should ensure that the proper court vested with full jurisdiction to determine the matter should adjudicate over it and due process and procedure is followed.

When the foundation of the judgment itself is faulty for want of personal jurisdiction against the Debtor or failure to serve him with process of court or denial of availing him a chance to enter his defence or where the court lacks the jurisdiction to adjudicate over the subject matter ab initio, the judgment will fail. Or where there is a (fundamental) defect in the judgment sought to be enforced, the entire process will fall on the ground of that defect.


173Roberts & Shoda


Adeniyi Shoda is a Nigerian lawyer with vast experience in corporate, commercial litigation and arbitration, investments, mergers, contract negotiations and administration, legal due diligence and SWOT analysis on commercial restructuring.He has represented up to 10 commercial banks in Nigeria in defending judgment enforcement suits and has successfully represented Clients in at least 100 garnishee proceedings and Mareva Injunction Claims in Nigeria.He is a legal due diligence expert which includes thorough due diligence investigation of the status of commercial entities and business trans-actions and advises on the viability or otherwise of the legal corporate entity or otherwise the commercial transaction investigated. He acts as a general legal practitioner on other civil and criminal matters.Adeniyi Shoda is also an examiner at the Nigerian Law School where he helps to evaluate applicants to the Nigerian Bar.

Roberts & Shoda71, Abidjan StreetWuse Zone 3AbujaNigeria

Tel: +234 813 093 6352 +234 805 225 7325Email: [email protected]: www.robertsandshoda.com.ng

Roberts & Shoda is a full-service law firm in Nigeria.We have invaluable experience in corporate and commercial law and arbitration, intellectual and real property law, civil and criminal litigation, contract administration and legal drafting. Our years of practice have afforded us the opportunity to work in some other African judicial systems like Ghana and Liberia where we advised on the authenticity, legality and workability of the business proposals vis-à-vis the extant law(s) of the African country in focus.One of the key strengths of our firm is the provision of legal services effi-ciently and promptly. We also have a culture of carefully reviewing the instruction of our Client and providing the most appropriate legal advice and solutions to their needs. Our knowledge of the Nigerian law is quite deep and we ensure that we advise our Clients based on the extant statutes and case law of the country.

www.robertsandshoda.com.ng

Abolanle Davies is a seasoned legal practitioner and a qualified Arbitrator. She is an Associate member of The Chartered Institute of Arbitrators (UK) CIArb. She heads the Dispute Resolution Department of the firm. She is a member of the Institute of Chartered Secretaries and Administration of Nigeria (ICSAN) wherein she was inducted as a member with a Professional Diploma certificate in Corporate and Public Administration. She specialises in civil and criminal law and has considerable experience in commercial and corporate dispute resolution, mediation, debt recovery, real property, as well as international arbitration.

Roberts & Shoda71, Abidjan StreetWuse Zone 3AbujaNigeria

Tel: +234 813 093 6352 +234 802 361 2459Email: [email protected]: www.robertsandshoda.com.ng



Chapter 30174

North Macedonia

Debarliev, Dameski and Kelesoska, Attorneys at Law Martina Angelkovic

Ivan Debarliev

North M

acedonia

law, a ‘judgment’ capable of recognition and enforcement consti-tutes a judgment adopted by the court of a foreign country, court settlement adopted by the court of a foreign country and decision adopted by other body of a foreign country which in the country of origin is considered equal to a court judgment or court settle-ment if such judgment regulates relations arising from personal (status), family, labour, property and other substantial legal rela-tions with an international element.


The foreign judgment must be considered a ‘judgment’ in accordance with the Macedonian Law on international private law (as described in question 2.2 above).

The judgment shall be submitted in an original or certified copy alongside a confirmation claiming the judgment is final, provided by the foreign country court, or other competent body in accordance with the country of origin legislation. In addi-tion, the court shall be provided with a certified translation of the judgment in the official language of the court of recognition.

In order for the judgment to be enforceable in North Macedonia, in addition to the above, the court of recognition shall also be presented with a confirmation of the judgment enforceability in accordance with the country of origin legislation.

In addition to the above, in order for the judgment to be recognised the following conditions shall be satisfied: i) no violation of due process has occurred in the foreign proceedings in which such judgment is adopted; ii) there is no exclusive juris-diction of a Macedonian court for the subject of the dispute; iii) there is no agreement stipulating jurisdiction of a Macedonian court for the subject of the dispute; iv) there is no res judicata for the substantive case; and v) the foreign judgment is not deemed contrary to Macedonian public order.

In the process for recognition of a foreign arbitral award, the applicant shall submit an original or duly verified copy of the award as well as the original or duly verified copy of the arbitral agreement. If any of such is not made in the official language of the court of recognition, the applicant shall provide a certified translation in the official language of the court of recognition.


In order for the courts to accept jurisdiction for recognition and enforcement, there should not be exclusive jurisdiction of a Macedonian court for the subject of the dispute, no agreement

1 Country Finder





Law on interna-tional private law

All countries Section 2

Law on enforcement


Law on inter-national trade arbitration of the Republic of Macedonia


New York Convention on the recognition and enforcement of foreign arbitral awards

All signatory countries of the convention

Section 2

2 General Regime


Foreign judgments shall be recognised by the courts of the Republic of North Macedonia in accordance with the provisions of the Law on international private law and enforcement of such judgments shall be conducted in accordance with the provisions of the Law on enforcement.

Furthermore, the Law on international trade arbitration of the Republic of North Macedonia stipulates that the recognition and enforcement of foreign arbitral awards shall be subject to the provi-sions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed on June 10, 1958 in New York.


In accordance with the Macedonian Law on international private


175Debarliev, Dameski and Kelesoska, Attorneys at Law


■ the competent court shall determine if conditions for recognition are fulfilled ex officio;

■ should the court determine that the conditions for recog-nition are met, the court shall adopt a decision for recogni-tion of the foreign judgment;

■ the court shall then present the opposing party, as well as other participants in the procedure in which the foreign decision has been adopted, with the decision for recogni-tion, instructing them regarding their right to object such decision within 15 calendar days as of the day of receipt of the decision for recondition;

■ should such objection be filed, a counsel by the competent court, consisting of three judges, shall decide with regards to the objection and may schedule a hearing;

■ the court shall reach a decision with regards to the filed objection;

■ should any party be unsatisfied with the reached decision, such party shall have the right to appeal to the appellate court within eight calendar days as of the day of receipt of the decision; and

■ the proceedings for recognition shall be finalised with the adoption of the appellate court decision offering the final conclusion with regards to appeals submitted by the parties.


■ Foreign judgment The recognition of a foreign judgment can be challenged

in case such judgment does not fulfil any of the required conditions as explained in question 2.3 above.

The opposing party may challenge the recognition by way of objection during the proceedings before the first instance court as well as appeal the decision reached by the three-member judicial council (please also see question 2.6 above).

■ Arbitral award With regards to the procedure for recognition of a foreign

arbitral award, such may be refused at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recogni-tion and enforcement is sought proof that: ■ the parties to the arbitrage agreement under the law

applicable to them are under some incapacity or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

■ the party against whom the award is invoked was not given proper notice of the appointment of the arbi-trator or of the arbitration proceedings or was other-wise unable to present their case; or

■ the award deals with a difference not contemplated by or not falling within the terms of the submission to arbi-tration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or

■ the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbi-tration took place; or

■ the award 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, such award was made.

stipulating jurisdiction of a Macedonian court for the subject of the dispute, no prior judgment for the substantive case adopted by competent local courts and the foreign judgment should not be deemed contrary to Macedonian public order.

In addition to the above, the Law on international private law further provides for connections to jurisdiction, as follows:■ Foreign judgment regarding the personal state (status) of a Macedonian

resident A foreign judgment regarding the personal state (status) of

a Macedonian resident, in the event that foreign law was applied, shall be recognised and accepted if such judgment does not substantially deviate from the law of the Republic of North Macedonia applicable to the relation in question, even if in accordance with the Macedonian Law on interna-tional private law, Macedonian legislation should be applied.

■ Foreign judgment regarding the personal state (status) of a resident of a foreign country (country of origin of the judgment)

Judgments adopted by a foreign country court regarding the personal state (status) of a resident of the country of the court shall be recognised and accepted in the Republic of North Macedonia without assessment by the recognition court regarding the rules of exclusive jurisdiction of Macedonian courts and the effect of the recognition of such judgment to the public order of the Republic of North Macedonia. The above shall not be applicable in the event that the competent body of recognition in the Republic of North Macedonia considers such judgment to be related to the personal state (status) of a Macedonian resident, and such decision shall be assessed in light of public order rules and requirements for recognition (as described in question 2.2 above).

■ Foreign judgment regarding the personal state (status) of a foreigner non-resident of the country of origin of the judgment

A foreign judgment regarding the personal state (status) of a foreigner non-resident of the country of origin of the judgment shall only be recognised and accepted in the event that such judgment fulfils the requirements for recognition of the country of residency of such person.


There is a difference between recognition and enforcement of judgments according to Macedonian legislation.

Foreign judgments recognised by the court of the Republic of North Macedonia shall be deemed equal to judgments adopted by Macedonian courts and thus have full legal effect in the Republic of North Macedonia.

Judgments submitted for recognition shall be submitted alongside a confirmation stating such judgment is final in light of the country of origin legislation.

Foreign judgments recognised by Macedonian courts shall be enforced in the Republic of North Macedonia thus enabling the creditor to collect their claim against the debtor as set by the foreign judgment.

In addition, for the purposes of enforcement of a foreign judg-ment, the court of recognition shall also be presented with confir-mation of enforceability of such judgment in the country of origin.


The procedure for recognition and enforcing a foreign judg-ment, in accordance with Macedonian law, is as follows:■ the procedure is initiated by filing a proposal with the

competent Macedonian court;


176 North Macedonia



Macedonian legislation does not prescribe a limitation period for recognition and enforcement of a foreign judgment.

On the other hand, the Macedonian Law on obligations provides for a limitation period for enforcement of claims deter-mined with final court decisions or decisions adopted by other competent authorities. Namely, claims determined with final decisions shall be deemed obsolete unless enforced within a period of 10 years (as of the day the decision becomes final).



The foreign judgment must be considered a ‘judgment’ in accord-ance with the Macedonian Law on international private law (as described in question 2.2 above). For the purposes of recognition and enforcement, the judgment shall be submitted in an original or certified copy alongside a confirmation claiming the judgment is final, as well as a confirmation of such judgment enforceability, provided by the foreign country court, or other competent body in accordance with the country of origin. In addition, the court shall be provided with a certified translation of the judgment in the official language of the court of recognition.

In order for a judgment to be recognised the following conditions shall be satisfied: i) no violation of due process has occurred in the foreign proceedings in which such judgment is adopted; ii) there is no exclusive jurisdiction of a Macedonian court for the subject of the dispute; iii) there is no agreement stipulating jurisdiction of a Macedonian court for the subject of the dispute; iv) there is no prior judgment by a competent local court for the substantive case; and v) the foreign judgment is not deemed contrary to Macedonian public order.

In the process for recognition of a foreign arbitral award, the applicant shall submit an original or duly verified copy of the award as well as the original or duly verified copy of the arbitral agreement. If any of such is not made in the official language of the court of recognition, the applicant shall provide a certified translation in the official language of the court of recognition.


A foreign judgment recognised by the court of the Republic of North Macedonia shall be deemed equal to the judgment adopted by Macedonian courts and thus have full legal effect in the Republic of North Macedonia. Furthermore, foreign judgments that have been recognised by Macedonian courts shall be enforced in the Republic of North Macedonia thus enabling the creditor to collect their claim against the debtor as set by the foreign judgment.

Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recogni-tion and enforcement is sought finds that: (i) the subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (ii) the recognition or enforcement of the award would be contrary to the public order of such country.


There is no legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters in the Republic of North Macedonia.


a) If the Macedonian courts or other competent authorities have reached a final decision regarding the matter decided upon with the foreign judgment, such foreign judgment shall not be recognised as it shall be deemed that there is already a prior adopted judgment regarding the issue in question.

b) Should there be pending local proceedings initiated before a competent court in North Macedonia regarding the matter decided upon with the foreign decision, prior to initiating the proceeding for recognition of the foreign judgment, such proceedings for recognition shall cease until the proceed-ings before the Macedonian court is finished meaning a final decision by the Macedonian court is adopted.


The existence of a conflicting local law may be considered an obstacle for recognition of a foreign judgment, as it may be considered that a foreign judgment conflicting with the local laws is contrary to Macedonian public order. Furthermore, the law does not specifically prescribe the existence of a prior judg-ment between different parties as an obstacle for recognition; however, it cannot be excluded that a foreign judgment of sorts may be deemed contrary to Macedonian public order.


Please see the conditions listed in question 2.3 above.


The listed laws are applicable as such to the entire territory of the Republic of North Macedonia, therefore there is no difference in the rules and the procedure of recognition and enforcement.


177Debarliev, Dameski and Kelesoska, Attorneys at Law


4 Enforcement


Once the foreign judgment is recognised, the creditor is able to initiate enforcement proceedings in accordance with the Law on enforcement of the Republic of North Macedonia.

In accordance with the Law on enforcement, enforcement is conducted through authorised enforcement agents and is initi-ated upon a submitted request by the creditor. The subject of enforcement shall be the debtor’s assets – movable or immov-able (monetary funds on active bank accounts in the authorised banks in the Republic of North Macedonia, real estate, movable assets such as vehicles, etc. as well as shares and other assets) as well as the debtor’s claims to their debtors.

5 Other Matters


There have not been any recent developments in Macedonian legislation regarding the recognition and enforcement of foreign judgments in the last 12 months.


There are no particular critical issues to be flagged.


The procedure for recognising and enforcing a foreign judgment does not differ in view of the applicable regimes set out in ques-tion 1.1 above.

The procedure for recognition and enforcement as explained above in question 2.6 above shall be conducted as follows:■ the procedure is initiated by filing a proposal with the

competent Macedonian court;■ the competent court shall determine if conditions for

recognition are fulfilled ex officio;■ should the court determine that the conditions for recog-

nition are met, the court shall adopt a decision for recogni-tion of the foreign judgment;

■ the court shall then present the opposing party, as well as other participants in the procedure in which the foreign decision has been adopted, with the decision for recogni-tion, instructing them regarding their right to object such decision within 15 calendar days as of the day of receipt of the decision for recondition;

■ should such objection be filed, a council by the competent court, consisting of three judges, shall decide with regards to the objection and may schedule a hearing;

■ the court shall reach a decision with regards to the filed objection;

■ should any party be unsatisfied with the reached decision, such party shall have the right to an appeal to the appellate court within eight calendar days as of the day of receipt of the decision; and

■ the proceedings for recognition shall be finalised with the adoption of the appellate court decision offering the final conclusion with regards to appeals submitted by the parties.


There is no special regime referring to the grounds for chal-lenging in addition to the grounds as listed in question 2.7 above.


178

Ivan Debarliev is one of the founders and name partner in Debarliev, Dameski and Kelesoska, Attorneys at Law. He is the head of the big clients department in Debarliev, Dameski and Kelesoska, Attorneys at Law. Mr. Debarliev is an experienced bilingual negotiator whose mediating and analytical skills have proven invaluable in the resolving of many complex disputes. His main focus areas of expertise include corporate law litigation, arbitration, electronic communications and mergers and acquisitions. Mr. Debarliev is a member of the Macedonian Bar Association, International Union of Lawyers (UIA) and the International Bar Association (IBA).

Debarliev, Dameski and Kelesoska, Attorneys at Lawstr. Mirche Acev no.2 / 3rd floorSkopjeNorth Macedonia

Tel: +389 2 321 5471Email: [email protected]: www.ddklaw.com.mk

Accepting the premise that no one can be equally versed in all fields of law, Debarliev, Dameski and Kelesoska, Attorneys at Law (DDK) has been created as a company committed to be the leading business law firm in North Macedonia.DDK is also the first law company established in the territory of the Republic of North Macedonia, distinguishing itself in the market with a clear busi-ness and corporate law orientation, complemented by an excellent network of legal experts covering the complete territory of the Republic of North Macedonia. The quality of DDK rests mainly upon the quality of its attorneys, their acces-sibility and efficiency. DDK’s attorneys at law share outstanding academic backgrounds, as well as a strong commitment to legal perfection. The partners of DDK have more than 15 years’ law practice experience and have exceeded clients’ expectations by providing sophisticated and effi-ciently managed legal services. DDK offers excellent legal services to clients involved in all of the biggest M&A and energy projects in Macedonia, and has been engaged as counsel in numerous successful PPP projects, privatisations, capital markets trans-actions, banking, joint ventures, etc.

www.ddklaw.com.mk


North Macedonia

Martina Angelkovic became a part of Debarliev, Dameski and Kelesoska, Attorneys at Law in 2017. In 2015 she acquired an LL.M. degree in the field of criminal law from the Faculty of Law “Iustinianus Primus” in Skopje after successfully presenting her master thesis “The aetiology of murder in the heat of passion”. She passed the Bar exam in 2017 and is a member of the Macedonian Bar Association. Her previous working experience includes work in a law firm in the field of corporate law, including litigation – mostly regarding labour relations and damage compensation. Her main fields of work are corporate law, several types of civil disputes, litigation, banking, labour law, mergers and acquisi-tions as well as inheritance and succession procedures.

Debarliev, Dameski and Kelesoska, Attorneys at Lawstr. Mirche Acev no.2 / 3rd floorSkopjeNorth Macedonia

Tel: +389 2 321 5471Email: [email protected]: www.ddklaw.com.mk



Chapter 31 179

Poland

Kubas Kos Gałkowski Agnieszka Trzaska

Dr. Barbara Jelonek-Jarco

Poland

European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of 20 May 1980.

States which have ratified the Convention. The updated list is avail-able at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/105/signa-tures?p_auth=dTul-WoYI.

Section 3.

IMO – Poland. International Convention on Civil Liability for Bunker Oil Pollution Damage, adopted by the International Maritime Organisation in London on 23 March 2001.

States which have ratified the Convention. The updated list is avail-able at: imo.org/en/About/Conventions/StatusOf Conventions/Pages/Default.aspx.

Section 3.

Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.

States which have ratified the Convention. The updated list is avail-able at: https://www.hcch.net/en/instru-ments/conventions/status-table/?cid=85.

Section 3.

Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance.


Section 3.

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.


Section 3.

1 Country Finder




Corres-ponding SectionBelow

Art. 1145 – Art. 115325 of the Act of 17 November 1964 – The Code of Civil Procedure (hereinafter: “CCP”).

Non-EU countries (separate regime for EU Member States – see chapter 2).

Section 2.

Multilateral ConventionsConvention on the Recognition and Enforcement of Foreign Arbitral Awards (drafted in New York on 10 June 1958) (hereinafter: the “NY Convention”).

States which have rati-fied the Convention. The updated list is available at: http://www.newyorkconven-tion.org/list+of+con-tracting+states.

Section 3.

The New Lugano Convention on jurisdic-tion and the recogni-tion 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:■ 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.

Norway, Iceland and Switzerland.

Section 3.


180 Poland


Serbia-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 1960.

Poland and Serbia. Section 3.

Slovenia-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 1960.

Poland and Slovenia. Section 3.

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 February 1960. Agreement of 23 April 2009 between Poland and Montenegro regulating bilateral treaty relations.

Poland and Montenegro.

Section 3.

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 1960. Agreement of 9 May 2007 between Poland and the Republic of Macedonia regulating bilateral treaty relations.

Poland and Macedonia.

Section 3.

Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations.


Section 3.

Convention on proceedings in civil and commercial matters, drafted in Warsaw on 26 August 1931.

It is also appli-cable in relations with Australia, New Zealand, Canada, Kenya, Malta, Tanzania, Bahamas, Dominican Republic, Fiji, Lesotho, Swaziland and Tonga.

Section 3.

Morocco-Poland. Agreement of 21 May 1979 on judicial assis-tance in civil and crim-inal matters.

Poland and Morocco. Section 3.

Ukraine-Poland. Agreement of 24 May 1993 on judicial assis-tance and legal relations in civil and criminal matters.

Poland and Ukraine. Section 3.

Vietnam-Poland. Agreement of 22 March 1993 on Mutual Legal Assistance in Civil, Family and Criminal Matters.

Poland and Vietnam. Section 3.

Turkey-Poland. Agreement of 12 April 1988 on judicial assis-tance in civil and commercial matters.

Poland and Turkey. Section 3.

Cuba-Poland. Agreement of 18 November 1982 on judicial assistance in civil matters, family matters and crim-inal matters, signed in Havana.

States which have ratified the Convention. The updated list is avail-able at: https://www.coe.int/en/web/conventions/full-list/-/conven-tions/treaty/105/signatures?p_auth=-98j1MJag.

Section 3.

Syria-Poland. Agreement of 16 February 1985 on judi-cial assistance in civil and criminal matters.

Poland and Syria. Section 3.

Belarus-Poland. Agreement of 26 October 1994 on judi-cial assistance and legal relations in civil matters, family matters, employees’ matters and criminal matters.

Poland and Belarus. Section 3.


181Kubas Kos Gałkowski


2 General Regime


In the absence of any special regime, the foreign judgment would be recognised and enforced under the provisions of Book III of Part VI of the CCP.

Since 2008, the substantive and formal conditions for respecting the effectiveness or enforceability of foreign judg-ments and court settlements in Poland have been significantly liberalised. The new provisions were modelled on the solu-tions adopted in Regulation No. 44/2001 and Regulation No. 2201/2003 (see question 2.6 below).


As a rule, foreign judgments in civil matters may be recognised or enforced. Moreover, Art. 11491 and Art. 11514 of the CCP allow for the recognition and enforcement of judgments issued by other authorities of foreign countries (including administra-tive authorities), provided that they issue judgments on disputed civil cases and, in accordance with the law of a given country, are appointed to resolve such cases in specific proceedings. Settlements in civil cases concluded before courts and other authorities of foreign countries or approved by them are also enforceable if they are enforceable in the country of origin and are not contrary to the basic principles of the legal order of the Republic of Poland.


Firstly, a foreign judgment should be issued in a civil case. The CCP rules are not appropriate to determine the effectiveness of judgments and decisions in criminal and administrative matters.

In addition, a judgment or decision of another competent authority of a foreign State in civil matters should be final and legally binding in the State where it was issued.

At present, the legislator no longer requires that a given civil case decided by a foreign ruling should belong to court proceed-ings in Poland.

A person claiming recognition of a foreign judgment or applying for a declaration of enforceability shall be required to provide:■ 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 and binding;

■ (if the judgement was issued in proceedings in which the defendant did not enter a dispute as to the substance of the case) the document establishing that the pleading insti-tuting the proceedings was served on the defendant; and

■ translations of the above documents into Polish.


There is no general rule in this respect. However, the law

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 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.

Poland and Bosnia and Herzegovina.

Section 3.

Tunisia-Poland. Agreement of 22 March 1985 on judicial assis-tance in civil and crim-inal matters.

Poland and Tunisia. Section 3.

Iraq-Poland. Agreement of 29 October 1988 on judi-cial assistance in civil and criminal matters.

Poland and Iraq. Section 3.

Algeria-Poland. Agreement of 9 November 1976 on judicial assistance in civil and criminal matters.

Poland and Algeria. Section 3.

DPRK-Poland. Agreement of 28 September 1986 on judicial assistance in civil matters, family matters and criminal matters.

Poland and North Korea.

Section 3.

Cuba-Poland. Agreement of 18 November 1982 on judicial assistance in civil matters, family matters and criminal matters.

Poland and Cuba. Section 3.

Libya-Poland. Agreement of 2 December 1985 on judi-cial assistance in civil matters, commercial matters, family matters and criminal matters.

Poland and Libya. Section 3.


182 Poland


authority was made, but also to any entity which has a legal interest in doing so. A legal interest is understood as an objec-tively existing need (i.e. caused by a real need to protect a specific legal area) to obtain a judgment on whether a specific foreign judgment has any effect on the territory of Poland or not.

This procedure is a bilateral one – it cannot be conducted only with the participation of the applicant and it is of an adversarial nature.

The application for the establishment that the judgment of a court of a foreign state is or is not subject to recognition should meet the requirements for each pleading and should, moreover, be paid for.

After the application is filed, the court examines whether it meets the formal requirements applicable to each pleading insti-tuting proceedings (Art. 126 of the CCP) and fiscal require-ments. If the applicant fails to attach the documents specified in Art. 1147 of the CCP, the court will call to remove the defects.

If the application is free from defects or has been successfully completed, the court orders that the application be served on the other party or parties and informs them of the possibility to present their views within 14 days.

The court’s determination as to whether the judgment is subject to recognition may be made in a closed session (there is no requirement to hold a hearing in the case).

Foreign judgments which may be enforced by way of execu-tion become enforceable after issuance of a declaration of enforceability. The declaration of enforceability is given, at the request of the creditor, by a declaration of enforceability of the judgment of the court of a foreign State.

Similarly, an application for a declaration of enforceability must meet the requirements of the pleading instituting the proceedings and, moreover, it must be accompanied by the documents referred to in Art. 1147 of the CCP (see question 2.3 above). An application for a declaration of enforceability also requires the production of a document stating that the judg-ment is enforceable in the State of origin (unless enforceability is based on the content of the judgment or on the law of that State). The application is subject to a fee.

The right to file an application is vested on the creditor (the entity for which the foreign judgment awarded the benefit) or his legal successor under a general or special title. The passive right-holder is an entity against which the enforcement will be conducted; as a rule, it will be the entity against which the benefit has been awarded in a foreign trial.

The application is subject to preliminary examination by the court as to whether the abovementioned requirements have been met. Then the application is served on the other party, who can present a position on the application within 14 days.

The court shall examine the application at a closed session by issuing a judgment on awarding the enforcement clause or refusing to award the enforcement clause.

The proceedings concerning the determination of the recog-nition and the declaration of enforceability consist of two instances – the judgment of the regional court may be appealed against by the parties to the court of appeal.

In turn, an extraordinary appeal – a cassation appeal (which can be based on statutory grounds) – may be filed with the Supreme Court against the judgment of the court of appeal.


The provisions of the CCP (Art. 1146 of the CCP and Art. 1150 of the CCP) define the following obstacles for the recognition or enforce-ment of a foreign judgment, i.e. prerequisites, the occurrence of which excludes the principle of automatic recognition or leads to a refusal of a declaration of enforceability of a foreign judgment.

regulates the jurisdiction of the court to decide whether or not a judgment is subject to recognition, and to decide on an appli-cation for a declaration of enforceability of a foreign judgment.

In cases concerning recognition, a regional court which i) would be territorially competent to hear a case settled by a judg-ment of a court of a foreign state, or ii) whose district has a terri-torially competent district court, or iii) in the absence of such a basis – the Regional Court in Warsaw would be competent. Therefore, the first step is to determine the competent court on 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, or the court in whose jurisdiction enforcement is to be carried out, shall decide on the enforcement clause.


Yes, Polish law distinguishes between the recognition and enforcement of a foreign judgment.

The recognition refers to the enforceability of a judgment; enforceability of a judgment means the totality of its effects. The recognition therefore consists in respecting the effects which the foreign judgment has had in the State of origin and in ‘trans-mitting’ those effects to the territory of the State of recognition. Such effects include, in particular, the degree of res judicata and the binding force of the judgment. Thanks to the institution of the recognition of a foreign judgment, a given entity may count on legal protection from the Polish authorities. It also has the possibility to further pursue its claims in cases where the recog-nition of the judgment was a preliminary issue.

The concept of enforcement should be combined with a declaration of enforceability, and thus with giving the judgment only the execution power.

It should be noted that the recognition applies to any foreign judgment given in civil matters. It is irrelevant whether the foreign judgment will be enforced in the Republic of Poland. However, the declaration of enforceability is related only to those foreign judgments which are suitable for enforcement by way of an execution.


Since 2008, the CCP has been expressing a system of automatic recognition of foreign judgments. In such a case, there is no need to conduct special proceedings or issue a sovereign act by the Polish authority. The judgment, in principle, has legal effects at the same time as in the country of origin, unless the negative conditions for its recognition under Art. 11461 of the CCP are met (see question 2.7 below).

The system of automatic recognition is accompanied by the possi-bility of initiating proceedings to establish whether or not a specific judgment is subject to the recognition. Such a procedure is optional, i.e. it is not a formal condition for the recognition of a foreign judg-ment and in cases where there is no dispute or doubt about the recog-nition between the parties, it will probably not be initiated.

The procedure for determining whether a foreign judgment is subject to recognition is not fully regulated by the provisions of Part IV of the CCP. In the absence of autonomous regula-tions, the general rules of procedure should apply accordingly to such proceedings. The right to institute proceedings is granted by the provisions of the CCP not only to the parties to the proceed-ings in which the judgment of a foreign court or other competent




a judgment may be recognised or enforced as long as it is not contrary to the fundamental principles of the legal order of the Republic of Poland (ordre public). There is no requirement for the judgment to be fully compliant with all the provisions of the Polish law. Recognition/enforcement of a judgment is refused only if recognition or enforcement would be incompatible with the fundamental constitutional principles and the guiding prin-ciples governing individual areas of Polish law.

In the second scenario, when a prior judgment on the same or a similar issue but between different parties was issued, both recognition and enforcement is possible. A refusal to recognise/enforce a judgment is possible only if the judgment is incon-sistent with a previously issued final decision of a Polish court or a previously issued final decision of a foreign court, meeting the conditions for its recognition in the Republic of Poland, issued in a case concerning the same claim between the same parties.


Polish courts are not entitled to control the correctness of foreign court judgments, hence, as a rule, they are not entitled to assess the correctness of the application of Polish law by a foreign court. Only in cases where the recognition or enforcement of a judg-ment from a foreign state applying Polish law would be contrary to the fundamental principles of the domestic legal order (the public policy clause) or contrary to the overriding mandatory provisions (such provisions regarded as being crucial by a country for safeguarding its public interests, such as its political, social or economic organisation) will the Polish court determine that the judgment is not subject to recognition or deny its enforceability.


The CCP is uniformly applied throughout the Republic of Poland.


The CCP does not introduce any specific regulation concerning the issue of the time limit within which a foreign court’s judg-ment may be recognised and enforced in the Republic of Poland. Under Polish law, the institution of the time bar is a material law institution, not a procedural one.



Poland is a party to numerous bilateral and multilateral inter-national agreements which separately regulate the issues of the enforcement and recognition of judgments. Due to the scope of this study, it is not possible to discuss each of these legal

A judgment shall not be recognised or enforced if:I. it is not final and binding in the State of origin;II. it has been made in a case falling within the exclusive juris-

diction of the Polish courts;III. a defendant who did not enter a dispute as to the merits of

the case was not duly served with the document instituting the proceedings in sufficient time to enable him or her to defend himself or herself;

IV. a party was deprived of the opportunity to defend himself or herself during the proceedings;

V. a case concerning the same claim between the same parties was pending in the Republic of Poland earlier than before a court of a foreign State;

VI. it is contrary to a previously issued final judgment of a Polish court or a previously issued final judgment of a court of a foreign State, meeting the conditions for its recogni-tion in the Republic of Poland issued in a case concerning the same claim between the same parties; or

VII. the recognition/enforcement would be contrary to the funda-mental principles of the legal order of the Republic of Poland.

Due to the model of automatic recognition of foreign judgments adopted in the Polish legal system, the changes made in the foreign judgment itself in its country of origin are not without impact on the validity of such a judgment in the Republic of Poland. If a recog-nised judgment is revoked or changed in the country of origin, it also loses its effectiveness in the Polish legal system.


The Republic of Poland is a party to many international conven-tions which have a direct impact on the issue of recognition and enforcement of foreign judgments. One of such legal acts is the NY Convention. It specifies the prerequisites for the recog-nition and enforcement of arbitral awards in disputes between natural persons and legal persons.


(a) If the foreign judgment is contrary to a previously issued final judgment of the Polish court in a case concerning the same claim between the same parties, then this circumstance constitutes the so-called obstacle to recognition; such a judg-ment is not subject to recognition/enforcement pursuant to Art. 1146 § 1 point 6 of the CCP and Art. 1150 of the CCP.

(b) If a case concerning the same claim between the same parties is pending before a Polish court earlier than before a court of a foreign State, a judgment originating from a foreign State shall not be subject to recognition pursuant to Art. 1146 § point 5 of the CCP. In such a case, the Polish court will refuse to recognise the foreign judgment and the case will continue to be pending between the same parties before a Polish court.


In the first scenario, when there is a conflicting local law, such


184 Poland


governed by domestic law (both as regards the determination of the court having jurisdiction to make the application and the course of the proceedings). International agreements usually also regulate the scope and subject matter of the court’s jurisdiction in proceedings. For example, according to the agreement concluded with China, a court in proceedings for the recognition or author-isation to enforce a judgment is limited to examining whether the judgment complies with the conditions of this agreement.

Some agreements allow for contact with the court that issued the judgment even in the course of recognition/enforcement proceed-ings. For example, the Agreement with Russia states that when ruling a case for recognition and enforcement, the court may request clarification from the parties. The court may also request additional explanations from the court that issued the judgment.

However, what is particularly important is that these agree-ments (unlike the CCP) as a rule do not provide for the auto-matic recognition of judgments.

Pursuant to Art. IV of the NY Convention, the party requesting recognition and enforcement of the judgment should, together with this request, produce the duly certified original or a copy of the judgment, as well as the original or a certified copy of the agreement of the parties to the arbitration. Such docu-ments should also be accompanied by a certified translation if the judgment or agreement is not in an official language of the State in which recognition or enforcement is sought.


In fact, under each of the specific regimes, there are separate provisions regarding when the recognition or enforcement of a judgment cannot take place.

Thus, Art. V of the NY Convention lays down negative grounds for the recognition and enforcement of a foreign arbitral judgement. However, these grounds are taken into account only on application by the party against whom the judgement is made. Recognition and enforcement shall be refused if that party provides evidence that:I. the parties to the arbitration agreement were, under the

law applicable to them, under some incapacity or the said agreement was not valid under the law governing it or under the law of the State in which the award was made;

II. the party against whom against the judgment is invoked was not given proper notice of the appointment of the arbitrator or the arbitration proceedings or was otherwise unable to present his case;

III. the judgment deals with a difference not contemplated by or not falling within the terms of the submission to arbitra-tion, or it contains decisions on matters beyond the scope of the submission to arbitration (however, if the deci-sions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced);

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 of the country where the arbitration took place; and

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 award was made.

The refusal of recognition and enforcement may also occur when an authority of the State addressed with the request for recognition and enforcement establishes that:

regimes in detail, hence the basic information concerning them is presented therein.

Some of these agreements relate to civil matters, others regu-late separate family matters (divorce, separation, alimony and other issues).

Under the NY Convention, the arbitration judgments in commercial matters which are rendered in a State other than that in which recognition or enforcement is sought, or which are not considered as national judgments in that State, are subject to recognition and enforcement.

In the case of other international agreements to which Poland is a party, the scope of judgments subject to recognition is often broader than under the CCP.

For example, the agreement between Poland and China states that the following are subject to recognition and enforcement:a) judicial judgments in civil cases;b) judicial judgments in criminal cases relating to damage

actions;c) decisions given by the authorities competent in succession

cases; andd) judgments of arbitration courts, whereby the term “court

judgement” within the meaning of the agreement includes court settlements in civil cases.

What is particularly important is that the agreement with China on arbitration judgments refers to the provisions of the NY Convention: “The Contracting Parties recognise and enforce arbitration judgments rendered in the territory of the other Contracting Party in accordance with the Convention on Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958”.

In accordance with the Agreement with Russia, the parties shall recognise and enforce in their territory the following judg-ments given in the territory of the other Contracting Party:1) judgments of courts in civil cases; and2) judgments of courts in criminal cases, in so far as they

concern compensation for damage caused by crim-inal offences; court judgments within the meaning of paragraph 1 shall be deemed to be settlements reached (approved) before civil courts of a pecuniary nature and notarial deeds which have the force of execution under the law of the Contracting Party in whose territory they have been drawn up, and final judgments of commercial courts if they are binding and enforceable.


The agreements to which Poland is a party in principle differen-tiate between recognition and enforcement, without, however, explaining the substance of that difference. They also do not provide for separate special rules for recognition/enforcement of a judgment.

The agreement between Poland and China also distinguishes between the recognition and enforcement, but the conditions for recognition and enforcement are the same.


The rules specify which documents must be attached to the appli-cation for recognition and enforcement, while the rest is generally




case of pecuniary and non-pecuniary claims. What is impor-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 county court.

It should also be emphasised that a creditor may also apply for security before commencing proceedings for granting an 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 claim whose future execution is to be secured exists, but also demonstration that the applicant has a legal interest in providing the security. Such action is necessary especially when there is a risk that the debtor will dispose of his assets.

The Polish law provides for separate regimes for the enforce-ment of monetary and non-monetary obligations.

The execution of monetary obligations is carried out by a judi-cial bailiff in one of the following ways:1) execution against movable property;2) execution against remuneration for work;3) execution against bank accounts;4) execution against other receivables;5) execution against other property rights;6) execution against immovable property; and7) execution against seagoing vessels.

On the other hand, in the case of execution of non-monetary obligations, the competent authority to conduct proceedings is the district court, and the available methods of execution are: 1) release of movable property; 2) release of a document;3) release of real estate;4) release of a vessel;5) emptying of premises;6) the debtor’s obligation to perform a substitutable act;7) the debtor’s obligation to perform a non-substitutable act;

and8) obligation to abandon a specific act or not to hinder the

creditor’s act.In order to commence enforcement proceedings, the cred-

itor must lodge a request for enforcement with the competent authority. The request in case of execution of non-monetary obligations is subject to a fee.

5 Other Matters


During the last period, the provisions of Art. 1145 et seq. of the CCP have not been changed. The Act of 4 July 2019 amending the Act, the CCP and certain other acts ( Journal of Laws of 2019, item 1460) introduced a number of changes in the Polish civil procedure, but not within these provisions.


The introduced system of automatic recognition of foreign decisions is to a large extent a positive solution. No separate procedure is required for the recognition of a judgment. This undoubtedly makes it easier for a person who has obtained a favourable foreign judgment in his or her case. The entity may rely on this judgment before any authority in the Republic

I. under the law of the concerned state, the subject matter of the dispute could not be submitted to an arbitration proce-dure; and

II. recognition or enforcement would be contrary to public policy in the state concerned.

Furthermore, when discussing, for example, the agreement with China, it is worth pointing out that, according to its provi-sions, judicial judgments will not be recognised and will not be allowed to be enforced if:a) under the law of the Contracting Party in whose territory

the judgment is to be recognised or enforced, the court that issued the judgment had no jurisdiction in respect of the case;

b) under the law of the Contracting Party in whose territory the judgment was given, the judgment is not binding and enforceable;

c) under the law of the Contracting Party in whose territory the judgment was given, the losing party has not been duly summoned by the court;

d) the party was prevented from defending its rights or, in the event of limitation or lack of procedural capacity, from being duly represented;

e) in the territory of the Contracting Party in which the judg-ment is to be recognised or enforced, a final judgment has already been passed on the same case between the same parties or proceedings are pending in respect of the same case or a final judgment has been passed by a court of a third State on the same case; and

f) recognition or enforcement would be contrary to funda-mental principles of law or public order in the Contracting Party in whose territory the judgment is to be recognised or enforced.

However, the conditions for recognition/enforcement are often defined in a positive way (see Art. 53 of the Agreement with Russia), but these requirements are also more far-reaching than in the CCP (again, referring to the example of the Agreement with Russia, the judgment is recognised if, in the case where the law of the other Contracting Party should have been applied, that law has been applied, unless the law of the Contracting Party whose authority has ruled is applied in the case in no mate-rial way different from the law of the other Contracting Party).

4 Enforcement


An entity which has obtained a declaration of enforceability of a foreign judgment in a procedure for the declaration of enforce-ability of a foreign judgment shall be able to use a state enforce-ment order to enforce the judgment.

Execution on the basis of a foreign court judgment may, however, only be commenced after the judgment granting the enforcement clause has become final. A longer period of time may lapse before a decision on granting an enforcement clause to a foreign decision becomes binding. In order to protect the creditor during this transitional period, the CCP provides a rule according to which until the lapse of the time limit for lodging a complaint against a decision of the regional court judg-ment granting an enforcement clause, and in case of lodging a complaint, until it is considered by the court of appeal, this deci-sion constitutes the title of the security. Thus, an enforcement order which is not enforceable has the same effect as a national interim relief order. The method of securing the claim is deter-mined by the creditor in the application for security, while separate methods of securing the claim are provided for in the


186 Poland


of Poland without the need to initiate separate deliberation proceedings. Moreover, the system of automatic recognition does not hinder other pending proceedings in which recogni-tion of a foreign judgment is a preliminary issue. This signifi-cantly reduces the waiting time for obtaining legal protection on the basis of a foreign judgment in the Republic of Poland.

On the other hand, however, the Code of Civil Proceedings indicates numerous cases in which a decision is not subject to recognition or enforcement. Therefore, a creditor who intends to take advantage of a decision issued in another country in the territory of the Republic of Poland should be aware of these cases and conduct proceedings before a foreign court in such a way that the obtained decision is enforceable in Poland.

Once enforcement proceedings are commenced, it is advis-able to obtain security over the debtor’s assets so that enforce-ment is possible at all (see question 4.1 above).


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Kubas Kos Gałkowski

Dr. Barbara Jelonek-Jarco, co-managing partner, 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 Treaties) disputes. Many of these proceedings are of a precedential nature. She assists clients in strategic consultations and negotiations both at the stages preceding the commencement of court disputes and in their course, as well as in the litigation risk assess-ment. She conducts long-term projects in corporate and commercial matters. She 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 GałkowskiRakowicka 7Krakow 31-511Poland

Tel: +48 12 619 40 45Email: [email protected]: www.kkg.pl

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. Kubas Kos Gałkowski is the Dispute Resolution & Arbitration Law Firm of The Year (2019) in the most prestigious Polish ranking of law firms conducted by Rzeczpospolita newspaper. Kubas Kos Gałkowski special-ises 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 as well as bankruptcy law and enterprise restructuring; administrative law & proce-dure; as well as energy law. With 25 years of experience in advising clients, the firm is committed to excellence in the legal profession.

www.kkg.pl

Agnieszka Trzaska, partner, attorney at law. She specialises in substantive and procedural civil law. She represents clients in court proceed-ings, including group proceedings and provides consultancy services to commercial entities in the scope of the widely understood civil, commercial and companies law. She has extensive experience in complicated civil cases, in which problems in the scope of private interna-tional law and international commercial arbitration occur, as well as in business matters, including disputes between company shareholders.She 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. She is the co-editor of the portal on class actions in Poland and worldwide: www.ClassAction.pl, and the author of publications regarding class actions in Poland. She is a Laureate of the Gazeta Prawna – Rising Stars 2014 ranking.

Kubas Kos GałkowskiRakowicka 7Krakow 31-511Poland

Tel: +48 12 619 40 50Email: [email protected]: www.kkg.pl


Chapter 32188

Portugal

CRA – Coelho Ribeiro e Associados Mark Robertson

Rui Botica Santos

Portugal


Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (CMR)

Albania, Armenia, Austria, Belarus, Belgium, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iran (Islamic Republic of), Ireland, Italy, Jordan, Kyrgyzstan, Latvia, Lebanon, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Republic of Moldova, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Tunisia, Turkey, Turkmenistan, the United Kingdom of Great Britain and Northern Ireland, and Uzbekistan

Section 3

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (NY Convention)

All countries signatory to the Convention

Section 3

1 Country Finder





Portuguese Civil Procedure Code (CPC)

Portugal Section 2

Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 (Lugano Convention)

EU Member States and Norway, Iceland and Switzerland

Section 3

Hague Convention on Civil Procedure of 1 March 1954 (Hague Convention on Civil Procedure)


Section 3

Hague Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 2 October 1973 (Hague Convention on Maintenance Obligations)


Section 3


189CRA – Coelho Ribeiro e Associados


the Portuguese courts to recognise and enforce a foreign judg-ment, apart from the rules set out in the previous question.


In fact, there are differences between recognition and enforcement. 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 secure formal acknowledgment of its rights, but may not seek to enforce them.

Enforcement involves the implementation, of the rights recognised and awarded by the judgment, via recourse to coer-cive means.


According to Art. 979 of the CPC, the competent Portuguese court with regard to the recognition of foreign judgments is the Court of Second Instance (Tribunal da Relação), with jurisdiction in the area of the defendant’s registered domicile.

The Portuguese system for the recognition of foreign judg-ments is termed a “deliberation or simply formal review”, in which it is confirmed whether the judgment is capable of taking effect in Portugal.

The process is essentially divided into the following steps:a) the claim, which must be accompanied by: (i) a copy of the

judgment; (ii) an ad justitia power of attorney; and (iii) any other documents that may be relevant to the recognition proceedings;

b) the claim will then be subject to a preliminary analysis by the Second Instance Court;

c) following this, the defendant is served with the statement of claim and notice to file a defence within no more than 15 days;

d) the Claimant is entitled to file a reply within 10 days of being served with the defence;

e) after the close of pleadings, the parties and the attor-ney-general’s department have 15 days in which to file closing arguments; and

f) in case the parties do not agree with the decision, they are entitled to appeal.

However, if the judgment in question is an arbitral award, the competent court will be a Court of First Instance (Tribunal da Primeira Instância). Where the relevant countries are signatories of the NY Convention, Art. III of the Convention is applicable, and in that case the recognition of foreign arbitral judgments follows the same procedure as that applicable to foreign court judgments as stated in the CPC.


A foreign judgment may only be challenged if:a) it does not meet the requirements described in the answer

to question 2.3 above;b) where any of the specific cases of review in Art. 696 a), c)

and g) of the CPC applies, namely: (i) another final judg-ment finds that the judgment was the result of a crime committed by the judge in the performance of his/her

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1965 (Washington Convention)


Section 3

2 General Regime


Without prejudice to the provisions of international treaties, conventions and European Union regulations and special laws, the legal framework that governs the recognition and enforce-ment of foreign judgments in Portugal is the Civil Procedure Code (CPC), Chapter V, Title XIV (The Review of Foreign Judgments), Arts. 978 to 985.


All decisions regarding private rights which are rendered by an independently appointed jurisdictional body of any State, which are final, can be recognised or enforced.

European regulations may be applicable in some specific matters as described in the EU chapter.


According to Art. 980 of the CPC, the following requirements must be met for a judgment to be recognised: a) there are no doubts as to the authenticity of the judgment

documents or the correctness of the decision; b) the judgment must have the status of a final decision under

the law of the country where the judgment was given; c) the judgment was given by a foreign court the jurisdic-

tion of which was not fraudulently obtained and concerns a matter that is not subject to the exclusive jurisdiction of the Portuguese courts;

d) a plea of lis pendens or res judicata cannot be invoked on the grounds of a case before the Portuguese courts, except where the foreign court exercised jurisdiction first;

e) the defendant has been properly served with the docu-ment which instituted the proceedings, under the law of the country of the court of origin, and that the proceed-ings were conducted in accordance with the adversarial principle and the principle of equality of the parties; and

f) the judgment does not contain a decision, the recognition of which is manifestly incompatible with the principles of international public policy of the Portuguese State.


There is no specific connection to the jurisdiction required for


190 Portugal


the revision will be limited to verifying whether the conclusions reached on the legal merits, or the procedure adopted, led to a breach of international public policy.


Recognition and enforcement apply identically throughout the whole Portuguese territory. The Azores and Madeira are part of Portuguese territory.


There is no specific provision regarding the limitation period for the recognition of foreign judgments. The limitation periods appli-cable to the nature or the legal basis of the claim are applicable.



Please find below the answers depending on the specific regime:

Lugano Convention: This Convention applies to civil and commercial matters whatever the nature of the court or tribunal. It does not include tax, customs or administrative matters. It basically reproduces the requirements in EU Regulation no. 1215/2012 on jurisdiction and the recogni-tion and enforcement of judgments in civil and commercial matters (Brussels I Bis Regulation), with the exception provided in Art. 47 no. 1, which states that nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the State requested without a declara-tion of enforceability being required.

Hague Convention on Civil Procedure:The order for costs and expenses is rendered enforceable without a hearing (Art. 19). The party seeking enforcement must provide (i) a copy of the judgment fulfilling the conditions required for its authenticity, (ii) proof of the res judicata effect of the underlying judgment, and (iii) whether that part of the judg-ment which constitutes the decision is worded in the language of the authority addressed, or in the language agreed between the two States concerned, or whether it is accompanied by a transla-tion, in one of those languages and, unless there is agreement to the contrary, which is certified as correct by a diplomatic officer or consular agent of the requesting State, or by a sworn trans-lator of the State addressed.

Hague Convention on Maintenance Obligations:This Convention applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity, including a maintenance obligation in respect of a child who is not legitimate.

A judgment is recognised or enforced according to the conflict of law rules set out in Arts. 4 to 6 in connection with Art. 8.

duties; (ii) a document is filed of which the applicant party was unaware, or which it was unable to use in the proceed-ings in which the judgment was made, and which is, per se, sufficient to alter the decision so as to favour the losing party; or (iii) the dispute is based on an act simulated by the parties and the court did not use its power to prevent the parties’ improper objective, because it failed to notice the fraud; and

c) where the judgment was against a Portuguese natural or legal person on the grounds that the outcome of the claim 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 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-patibility with international public policy rules, since Portugal is a civil law jurisdiction where judges are not bound by stare decisis.


Regulations on recognition and enforcement of foreign judg-ments are normally applicable to all subject matters.

There are, however, several multilateral conventions, to which Portugal is a party, related to the recognition and enforcement of judgments regarding specific matters, such as those stated in question 1.1 above.


As stated in question 2.6, Portuguese courts only make a formal revision of foreign judgments.

If the judgment is in accordance with the formal requirements set out in Art. 980 of the CPC, the judgment must be recog-nised, unless it is against Portuguese international public order principles.

Recognition would be refused in the cases where proceedings between the same parties are pending in Portugal, which were commenced before the foreign proceedings.


Portuguese courts do not review on the merits of the judgment, the revision is limited to verifying whether the judgment is contrary to international public policy order or not. Portugal is a civil law jurisdiction and there is no stare decisis doctrine.


As stated in the answer to the previous question, the issue of the substantive law applied in a foreign judgment concerns the merits of the case which cannot be reviewed by the Portuguese courts unless it breaches international public policy. Therefore,





For the regimes set out in the European Regulations and the Washington Convention, no exequatur will be necessary and, therefore, enforcement proceedings according to the procedural law applicable to the Member State where the enforcement is made can commence immediately. In most cases, an applica-tion for recognition and enforcement is made to the competent district court as set out in the answer to question 2.6 above.


Under the special regime, recognition/enforcement may be refused if any of the criteria set out in Art. V of the NY Convention is met, as previously stated in the answer to question 3.1 above. There is otherwise no review of the merits of the judgment.

4 Enforcement


A duly recognised foreign judgment can be enforced in the courts, in which the courts are the competent authorities and are assisted by enforcement agents. In court enforcement proceedings assets and/or income of the judgment debtor may be seized/attached.

As an alternative to the judicial procedure, creditors may use a prior administrative procedure known by the acronym PEPEX (pre-enforcement extrajudicial procedure), which is administered by enforcement agents. PEPEX may be used, inter alia, in cases of foreign judgments declared to be enforceable, judgments which are enforceable pursuant to EU legislation, treaties or conventions that are binding on Portugal and European enforcement orders. In PEPEX proceedings, enforcement agents conduct the search for assets and income on Portuguese databases. PEPEX allow creditors to obtain information about the possibility of recovering the money owed to them, very quickly, without the need to have recourse to legal proceedings. However, PEPEX proceedings must be converted into court enforcement proceedings.

Interim measures, such as the attachment of assets or income of the judgment debtor in order to secure the future enforce-ment of the judgment debt based on the foreign judgment and to prevent the judgment debtor from disposing of assets/income can be applied for prior to or when a judgment creditor applies for a foreign judgment to be recognised and enforced.

5 Other Matters


There have been no noteworthy legal developments in the Portuguese jurisdiction in the last 12 months.

According to Art. 11, the application of the law designated by this Convention may be refused only if it is manifestly incompat-ible with public policy (“ordre public”).

NY Convention:Portugal ratified the NY Convention in 1994 by Assembly of the Republic Resolution no. 37/94, of 10 March 1994.

The Convention is applicable to arbitral awards that fall within the scope of Art. I.

Art. IV provides that, in order to obtain recognition and enforcement, the parties must supply: (i) the duly authenticated original award or a duly certified copy thereof; and (ii) the orig-inal arbitration agreement or a duly certified copy thereof. If the said award or agreement is not made in an official language of the country in which the award is enforced, the party applying for recognition 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.

Moreover, in accordance with Art. V, recognition and enforce-ment of the award may only be refused where: (i) the parties to 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 arbitrator or of the arbitration proceedings or was otherwise unable to present his case; (iii) the award deals with a difference not contemplated by or not falling within the terms of the submis-sion to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the deci-sions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; (iv) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; and (v) the award 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 award was made.

Pursuant to Art. V, other grounds available for refusal are: (vi) the subject matter was not arbitrable; and (vii) the award is against public policy.

Washington Convention: This Convention established an International Centre for Settlement of Investment Disputes (ICSID). The purpose of the Centre is to provide facilities for conciliation and arbitra-tion of investment disputes between Contracting States and nationals of other Contracting States.

According to Art. 54 no. 1 of the Washington Convention, each Contracting State must recognise an award rendered within the Convention and enforce the pecuniary obligations imposed by that award. Therefore, no exequatur will be needed. The enforcement of partial/interim awards is also possible. No. 2 of the Art. 54 provides that, in order to recognise a judgment, a copy of the award must be certified by the Secretary-General.


All conventions provide for automatic recognition of foreign judg-ments, which has the same effects and limitations as described under the general regime referred to in the answer to question 2.5.


192 Portugal



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 enforce-ment proceedings the competent authorities are the courts and enforcement agents, with the latter being selected and appointed by the judgment creditor.




Rui Botica SantosNationality: 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 Av. Eng. Duarte Pacheco Amoreiras Torre 2 – 13 A 1099-042 Lisbon Portugal

Tel: +351 21 383 9060 Email: [email protected] URL cralaw.com/en

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

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 Av. Eng. Duarte Pacheco Amoreiras Torre 2 – 13 A 1099-042 Lisbon Portugal

Tel: +44 1671 404 802Email: [email protected]: cralaw.com/en


Chapter 33194

Singapore

Allen & Gledhill LLP Melissa Mak

Tan Xeauwei

Singapore


Choice of Court Agreements Act (Cap 39A, 2016 Ed.) (“CCAA”).

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Mexico, Montenegro, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

Question 2.8 and Section 3.

2 General Regime


Outside any applicable statutory scheme, a foreign judgment may generally be recognised and enforced in Singapore under common law by commencing an action for the judgment debt, on the basis that the foreign judgment creates an obligation on the part of the judgment debtor to make payment. The obliga-tion to pay the debt in Singapore is distinct from the original cause of action in the foreign court of origin.

As this is an original action commenced in Singapore, the judgment creditor must establish the Singapore court’s jurisdic-tion over the judgment debtor. This requirement will often be satisfied; if the judgment debtor is not in Singapore, service of the originating process out of jurisdiction will be permissible with the leave of court for claims brought to enforce any judg-ment. Please refer to question 2.4 below.

Once a judgment is obtained from the Singapore court, it may be enforced. The modes of execution include writs of seizure and sale and garnishee orders. Applications may also be made for the examination of the judgment debtor or its officers (if the judgment debtor is a company).


In respect of recognition and enforcement under the RECJA,

1 Country Finder





Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev. Ed.) (“RECJA”).

The United Kingdom, Australia, New Zealand, Sri Lanka, Malaysia, Pakistan, Hong Kong (for judg-ments obtained up until 30 June 1997), Windward Islands, Brunei Darussalam, Papua New Guinea and India (except the states of Jammu and Kashmir).

Section 3.

Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev. Ed.) (“REFJA”).

Hong Kong Special Administrative Region of the People’s Republic of China (for judgments on or after 1 July 1997) (“HKSAR”).

Section 3.

Maintenance Orders (Reciprocal Enforcement) Act (Cap 169, 1985 Rev. Ed.) (“MOREA”).

New Zealand, the United Kingdom, Manitoba, HKSAR and Australia.

Question 2.8 and Section 3.


195Allen & Gledhill LLP


process (a Writ of Summons and Statement of Claim) on the judgment debtor. The judgment debtor may then enter an appearance and file a Defence in the proceedings.

If the claim is a straightforward one, as a matter of practice, the judgment creditor may typically apply for summary judg-ment to obviate the need for a full trial.

A judgment that may be enforced through registration under the RECJA may be enforced through a common law action, but 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 otherwise. The Singapore court will not entertain any proceed-ings for the recovery of a sum payable under a foreign judgment which may be registered under the REFJA.


Where recognition or enforcement of a foreign judgment is sought under the common law, and assuming the requirements set out in question 2.3 have been satisfied, the defendant may challenge the action on the following grounds:(a) the foreign judgment had been procured by fraud;(b) enforcement or recognition would be contrary to

Singapore’s public policy;(c) enforcement or recognition would be tantamount to the

direct or indirect enforcement of foreign penal, revenue or other public laws; or

(d) the foreign judgment had been obtained in breach of natural justice.

If enforcement is resisted on these grounds, they should be set out in the Defence filed by the judgment debtor in response to the Statement of Claim.

For grounds on which recognition and enforcement can be challenged and set aside under the various statutory regimes, please refer to question 3.4 below.


The common law does not draw any distinction between foreign judgments relating to specific subject matters.

There are two statutory regimes for the recognition and/or enforcement of foreign judgments that apply only to specific subject matters: (a) The CCAA applies to international civil or commer-

cial disputes and does not extend to personal law matters such as family law, succession and probate, insolvency or personal injury. Tortious claims that do not arise from contracts, claims relating to the validity of or (non-con-tractual) infringement of intellectual property rights (other than copyright and related rights), and anti-trust matters are also excluded.

(b) The MOREA provides a statutory basis for the reciprocal enforcement of maintenance orders in Singapore.


For (a), if there are two conflicting judgments between the

REFJA, MOREA or CCAA, such a judgment would be one that is obtained in a jurisdiction which is: (a) a party to the RECJA, REFJA, MOREA or CCAA; and (b) satisfies the criteria under the respective statutes. Please refer to section 3 below.

In respect of recognition and enforcement under common law, the judgment would have to satisfy the criteria in question 2.3 below.


To be enforceable at common law, a foreign judgment must be: (a) from a court of competent jurisdiction (in the conflict of laws sense) in the foreign country; (b) final and conclusive on 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-ments are the same as that for enforcement, except that there is no requirement for the judgment to be for a fixed or ascertain-able sum of money.


In respect of recognition and enforcement under the RECJA, REFJA, MOREA or CCAA, the Singapore court will accept jurisdiction if the judgment was obtained in a jurisdiction spec-ified in the RECJA, REFJA, MOREA or CCAA (as the case may be).

In respect of recognition and enforcement under common law, the Singapore court has to have in personam jurisdiction over the judgment debtor in respect of an action for the judg-ment debt. The Singapore court will have in personam jurisdic-tion if the judgment debtor is validly served with the originating process in Singapore, or is validly served outside Singapore with the leave of court. The Singapore court will also have in personam jurisdiction if the judgment debtor submits to its jurisdiction.


Recognition of a foreign judgment means that the claim which forms the subject matter of that judgment, as adjudicated before the foreign court, will be regarded as having been fully determined.

Enforcement of a foreign judgment means that the judgment can be executed as though it were a local judgment.

Recognition per se of a judgment does not entitle the judgment creditor to enforce the judgment. Recognition is, however, a pre-requisite to enforcement.

Typically, recognition is used to bar further action on the same facts between the same parties (i.e., to raise an estoppel), while enforcement is used in order to execute the judgment in the forum and obtain payment.


Under the common law, the party seeking both recognition and enforcement would have to commence a fresh action for the judgment debt. This would require service of the originating


196 Singapore


the plaintiff has discovered the fraud, as the case may be, or could, with reasonable diligence, have discovered it.

As regards the statutory regimes, an application for the registra-tion of a judgment under the RECJA must be made 12 months from the date of the judgment, although the court has the discretion to extend this period. The corresponding period for applications under the REFJA is six years after the date of the judgment or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings. Under the CCAA, an application for the recognition and enforcement of a judg-ment may be made at any time, as long as the foreign judgment has effect and is enforceable in the state of origin.



RECJAThe judgment must be issued by a superior court and be a judg-ment or order whereby any sum of money is made payable. This includes an arbitration award if the award has, under the law in force in the place where the award was made, become enforce-able in the same manner as a judgment given by a court in that place.

The RECJA does not apply to any judgment which may be recognised or enforced under the CCAA.

The Reciprocal Enforcement of Commonwealth Judgments (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-utory regimes for the reciprocal enforcement of foreign judg-ments to be streamlined such that only a single statutory regime under the REFJA applies.

REFJAThe Act applies to any interlocutory or final judgment or order 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 crim-inal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party, and includes a consent judgment, a consent order and a judicial settlement.

Both money judgments (i.e. a judgment under which a sum is payable) and non-money judgments (i.e. a judgment that is not a money judgment) may be registered for enforcement under the REFJA. A non-money judgment will only be registered if, having regard to the circumstances of the case and the nature of the relief contained in the judgment, the Singapore court is satisfied that enforcement of the judgment would be just and convenient.

The judgment must be final and conclusive as between the parties, unless it is an interlocutory judgment. The sum payable thereunder cannot be in respect of taxes or other charges of a like nature or in respect of a fine or other penalty. A judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending or it is subject to appeal.

The REFJA does not apply to any judgment which may be recognised or enforced under the CCAA.

CCAAThe recognition and enforcement regime under the Act extends to foreign judgments given in international cases where there is an exclusive choice of court agreement concluded in a civil or

parties relating to the same issue, the general rule would be that the first in time prevails, and the first judgment creates an estoppel against the recognition of the later judgment. If there is a prior conflicting local judgment between the parties relating to the same issue, the foreign judgment will not be recognised or enforced.

For (b), if there are local proceedings pending, the Singapore court is likely to accord primacy to a prior foreign judgment between the parties which may be recognised under Singapore law. A foreign judgment between the same parties relating to the same issues would give rise to the defence of estoppel.


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 prior judgment concerned different parties and is not binding on the present parties. In such circumstances, as long as the require-ments for recognition and/or enforcement are met, the Singapore court will ordinarily not reopen the legal or factual merits of the claim which led to the issuance of the foreign judgment.


A foreign judgment that purports to apply the laws of Singapore is still a judgment of a foreign court. The ordinary rules appli-cable to the recognition and/or enforcement of foreign judg-ments will apply.


No. There is only one uniform system of law that applies across Singapore.


Since a common law action for the enforcement of a foreign judgment is an action on an implied debt, it will be subject to the limitation period of six years under section 6(1)(a) of the Limitation Act (Cap 163, 1996 Rev. Ed.) (“LA”).

The limitation period commences from the date of the judg-ment. However, there are a number of exceptions to this, including the following as may be applicable to a foreign judgment: (a) Under section 26(2) of the LA, where any right of action

has accrued to recover any debt or other liquidated pecu-niary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.

(b) Under section 29(1) of the LA, where the action is based upon or concealed by the fraud of the defendant or his agent or of any person through whom he claims or his agent, the period of limitation shall not begin to run until





RECJA / REFJAAn application to register a judgment under the RECJA and REFJA is made by an ex parte originating summons with a supporting affidavit exhibiting the judgment or a verified or certified or duly authenticated copy. If the judgment is not in the English language, it must be accompanied by a translation certified by a notary public or authenticated by affidavit.

An order granting leave to register the judgment, specifying the period within which an application may be made to set aside the registration, must be served on the judgment debtor. Execution proceedings for the registered judgment cannot be commenced until after the expiration of this period or the final determination of any application to set aside registration.

CCAAAn application for the recognition and/or enforcement of a foreign judgment is made by an ex parte originating summons supported by affidavit. The affidavit must exhibit a complete and certified copy of the foreign judgment, and a certified copy of the exclusive choice of court agreement applicable to the rele-vant dispute. Documents that are not in the English language must be accompanied by a certified translation.

An order granting recognition and/or enforcement of a foreign judgment must be served on every party to the proceed-ings in which the foreign judgment was obtained within 28 days. The order must also state that any party may apply to set aside the court order within 28 days after service (or such longer period allowed by the Singapore court). The order only takes effect after the expiry of the time limit to set aside the order.

MOREAA foreign maintenance order may be registered by a prescribed officer of the Singapore court if a certified copy of the maintenance order is received by the Minister from the responsible authority in a reciprocating country and the Minister has forwarded such order to the officer. Once the foreign maintenance order is registered, it may be enforced in the same way as a maintenance order made under the Singapore Women’s Charter (Cap 353, 2009 Rev. Ed.).


RECJARegistration must be refused on the following grounds:(a) the foreign court had acted without jurisdiction;(b) the judgment debtor had not voluntarily appeared or

otherwise submitted or agreed to submit to the jurisdic-tion of the foreign court;

(c) the judgment debtor (as a defendant) had not been served with process and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of the foreign court or had agreed to submit to its jurisdiction;

(d) the judgment had been obtained by fraud;(e) the judgment debtor satisfies the registering court either

that an appeal for the judgment is pending, or that the judgment debtor is entitled to and intends to appeal against the judgment; or

(f) the judgment was in respect of a cause of action which the Singapore court would not recognise for public policy reasons.

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 given by a foreign court of a state that is a party to the Hague Convention of 30 June 2005 on Choice of Court Agreements (“Convention”), being the court designated in an exclusive choice of court agreement or a court to which a chosen court has, in accordance with the law or practice relating to the allo-cation of jurisdiction or transfer of cases among courts in that contracting state, transferred the case to which the judgment relates.

A judgment includes any final court decision on the merits, a consent order, a consent judgment or a judgment given by default, or a determination by a court of any costs or expenses relating thereto.

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.

The CCAA does not apply where the exclusive choice of court agreement that designates a court of a Contracting State was concluded before the Convention entered into force in that Contracting State.

MOREAThe Singapore court may register a foreign maintenance order made by a court in a reciprocating country. A main-tenance order includes any order which corresponds to the following description: (a) an order providing for the payment of a lump sum or the making of periodic payments by a man towards the maintenance of his wife or foreign wife or by a person towards the maintenance of his child; or (b) an order adjudging, finding 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.


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.

Under the RECJA, REFJA and MOREA, the effect of regis-tration is to enable the foreign judgment or maintenance order 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.

This legal distinction is recognised in section 11 of the REFJA, which provides that a foreign judgment to which the registration procedure applies shall be recognised in any court in Singapore as conclusive between the parties in all proceedings founded on the same cause of action, whether or not the judg-ment can or has been registered. However, such foreign judg-ment will not be recognised if registration of the judgment had been, or would have been, set aside on some ground other than that: (a) a sum of money was not payable; (b) the judgment had been wholly or partly satisfied; or (c) the judgment could not be enforced by execution in the country of origin at the date of the application.

Under the CCAA, an application may be made to the Singapore court for a foreign judgment to be recognised, or to be recognised and enforced.


198 Singapore


(f ) the foreign judgment is being reviewed or appealed against in the state of origin or the time for applying for a review or appeal in the state of origin has not expired;

(g) the exclusive choice of court agreement designates a particular court and the chosen court has the discretion to transfer the case to another court in the same state and does so, and the transferee court issues a judgment against a party who had objected in a timely matter to the transfer; or

(h) if, and to the extent that, the foreign judgment awards damages in excess of compensation for the actual loss or harm suffered.

MOREAThe registration of a foreign maintenance order will be cancelled if the registered order is revoked by: (a) an order of the Singapore court; (b) a provisional order made by the Singapore court and confirmed by the court which made the foreign order, notice of which has been received by the Singapore court; or (c) an order made by the foreign court, notice of such revocation having been received by the Singapore court.

When an application for the variation of or revocation of a registered foreign order is made under the Act, the Singapore court will apply the law applied by the country in which the foreign order was made. If, however, the payer and the payee are both residing in Singapore for the time being, the Singapore courts will apply Singapore law, which allows for the revocation of a maintenance order if the order was based on any misrep-resentation or mistake of fact, or if there has been any material change in circumstances since the order was made.

4 Enforcement


The usual methods of enforcement applicable to a judgment issued by the Singapore courts will apply:(a) writs of seizure and sale for the seizure and sale of immov-

able and movable (including securities such as shares and debentures) properties;

(b) examination of the judgment debtor on his property;(c) garnishee orders requiring third parties, such as banks,

who are indebted to the judgment debtor to pay the judg-ment creditor the amount of any debt due or accruing due to the judgment creditor in satisfaction of the judgment;

(d) appointment of a receiver by way of equitable execution;(e) application for an order to commit the judgment debtor for

contempt of court; and(f) commencement of bankruptcy (against individuals) or wind-

ing-up proceedings (against companies), where applicable.Foreign maintenance orders registered under the MOREA

may generally be enforced through the same methods above, as well as by an order to attach the earnings of the payer.

5 Other Matters


The REFJA was amended to expand the scope of the types of foreign judgments that can be recognised and enforced to better reflect the needs of modern cross-border litigation.

REFJARegistration must be set aside if:(a) the REFJA does not apply to the judgment or was regis-

tered in contravention of the requirements for registration;(b) the foreign court had no jurisdiction;(c) the judgment debtor (as a defendant) had not received

notice of the proceedings in sufficient time to enable him to defend the proceedings and did not appear, notwith-standing that process may have been duly served on him in accordance with the laws of the foreign country;

(d) the judgment had been obtained by fraud;(e) enforcement of the judgment would be contrary to the

public policy of Singapore; or(f ) the rights under the judgment were not vested in the

person seeking registration under the Act.Notably, under the REFJA, the foreign court shall not be

deemed to have had jurisdiction if the proceedings in the foreign court had been in breach of an agreement to settle the dispute, unless the defendant had submitted to the jurisdiction of the foreign court.

In addition, registration may be set aside if:(a) the matter in dispute in the proceedings, which forms

the subject of the registered judgment, was the subject of a prior final and conclusive judgment by a court having jurisdiction in the matter; or

(b) the notice of registration had not been served on the judg-ment debtor, or the notice of registration was defective.

CCAAThe grounds for refusal of recognition and enforcement under the Act mirror the grounds under the Convention, with minor differences.

Recognition and/or enforcement must be refused in the following cases:(a) the defendant in the proceedings in which the foreign

judgment was obtained was not notified of the document by which the proceedings were instituted in sufficient time to enable him to defend the proceedings, unless the law of the state of origin permits the challenge of such noti-fication and the defendant had entered appearance and presented his case without challenging the notification before the foreign court;

(b) the foreign judgment was obtained by fraud in connection with a matter of procedure; or

(c) the recognition or enforcement of the foreign judgment would be manifestly incompatible with the public policy of Singapore, including circumstances where the proceedings in the foreign court are incompatible with fundamental principles of procedural fairness in Singapore.

Recognition and/or enforcement may be refused on the following general grounds:(a) the exclusive choice of court agreement is null and void

under the law of the state of the chosen court, unless the chosen court has determined that the agreement is valid;

(b) a party to the exclusive choice of court agreement lacked capacity under Singapore law to enter into that agreement;

(c) the defendant in the proceedings in which the foreign judg-ment was obtained was notified of the document by which the proceedings were instituted in a manner incompatible with the fundamental principles in Singapore concerning the service of documents;

(d) the foreign judgment is inconsistent with a judgment given by a Singapore court in a dispute between the same parties;

(e) the foreign judgment is inconsistent with an earlier judg-ment given in another state between the same parties on the same cause of action, and the earlier judgment satisfied the conditions under Singapore law for recognition;




The Reciprocal Enforcement of Commonwealth Judgments (Repeal) Act 2019 to repeal the RECJA was passed in September 2019, but it has yet to take effect. When the repeal of the RECJA takes effect, all cases of statutory reciprocal enforcement of foreign judgments will be dealt with by a single statutory regime under the REFJA.


Under the RECJA, REFJA and CCAA, execution cannot be levied until the expiry of the time period limited for the judg-ment 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 judg-ment creditor may consider applying for a Mareva injunction.


200

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 and 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 to be “clear and concise” and to take “a well-rounded approach when looking for solutions”.

Allen & Gledhill LLPOne Marina Boulevard, #28-00 Singapore 018989

Tel: +65 6890 7843Email: [email protected] 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 first of its kind. The Firm’s reputation for high-quality advice is regularly affirmed by the strong rankings in leading publi-cations, 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 and Myanmar; its associate firm, Rahmat Lim & Partners in Malaysia; and its alliance firm Soemadipradja & Taher in Indonesia, Allen & Gledhill’s network has over 550 lawyers in the region.

www.allenandgledhill.com

Singapore

Melissa Mak’s practice focuses on commercial litigation and international arbitration, including cross-border disputes. Melissa has acted in complex banking claims, shareholder and trust disputes, and professional negligence matters. She has also advised statutory boards and regulatory agencies. 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 is a contributing author of Singapore Civil Procedure and Singapore Law – 50 Years in the Making. Melissa graduated from the University of Cambridge with a B.A. (Hons) Law Degree (Double First Class) in 2009, and holds a BCL (Distinction) from the University of Oxford and an LL.M. from Harvard University. She was called to the Singapore Bar in 2015.

Allen & Gledhill LLPOne Marina Boulevard, #28-00 Singapore 018989

Tel: +65 6890 7148Email: [email protected]: www.allenandgledhill.com




Chapter 34 201

Spain

King & Wood Mallesons Fernando Badenes

Alfredo Guerrero

Spain

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 authentic instru-ments in matters of succession and on the creation of a European Certificate of Succession (“Succession Regulation”).

All countries within the EU, except Denmark, Ireland and the United Kingdom.

Section 3.

Convention on jurisdiction and the recognition and enforcement of judgments in civil and commer-cial matters 2007 (“Lugano Convention”).

Switzerland, Norway and Iceland.

Section 3.

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“NY Convention”).


Section 3.

European Convention on International Commercial Arbitration 1961 (“Geneva Convention”).


Section 3.

1 Country Finder





EU Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commer-cial matters (“Brussels I Bis Regulation”).

All countries within the EU.

Section 3.

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recogni-tion and enforce-ment of judgments in matrimo-nial matters and the matters of parental respon-sibility, repealing Regulation (EC) No 1347/2000 (“Brussels II Bis Regulation”).

All countries within the EU, except Denmark.

Section 3.

Regulation (EU) No 2015/848 of the European Parliament and of the Council on insolvency proceedings (“Insolvency Regulation”).

All countries within the EU, except Denmark.

Section 3.


202 Spain


Further, the basic requirements for any foreign judgment (not subject to any international convention) to be recognised in Spain are the following: (i) the judgment shall be final (i.e. no appeal has been submitted); (ii) it cannot be against the public policy of Spain; (iii) it should have not breached the rights of defence, as would occur if the judgment was rendered in default when no notification took place with enough time to prepare a defence; (iv) the foreign Courts should have not decided on a matter for which Spanish Courts were exclusively competent or concerning other matters when the jurisdiction of the foreign Court was not based on the basis of a reasonable connection; (v) it cannot be irreconcilable with a judgment rendered in Spain; (vi) it cannot be irreconcilable with a prior foreign judgment when the latter meets the necessary conditions for its recog-nition in Spain; and (vii) no pending proceedings have taken place between the same parties and on the same subject matter in Spain which have commenced on a previous date.

With regard to specific subject matters, the only rules to be applied are the European Regulations highlighted in question 1.1.


According to the Legal Cooperation Act, no connection to the 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 Tribunal.

The case will be heard by the First Instance Court or Commercial Court (depending on the subject matter of the judi-cial decision) of the registered domicile of the defendant or, secondarily, where the enforcement will effectively take place or, lastly, the Court at which the claim is filed. In case the enforced company is under insolvency proceedings in Spain, the case will be heard by the Commercial Court that handles such insolvency proceedings if the subject matter is within competence of the latter.


There are differences between recognition and enforcement. Enforcement means that a judgment may be executed before the competent Court, while recognition is the process of giving the same effects to the judgment in the State in which enforcement is sought as it does in the State of origin.

The main reason why a judgment creditor may choose to merely recognise the judgment is to prevent the debtor from triggering litigation concerning the same subject matter or where the creditor aims to recognise a legal situation in the rele-vant country (e.g. divorce). However, for the judgment to deploy all its effects and if the judgment creditor wants to compel the debtor to comply with the said judgment, enforcement must be sought.


In general, the exequatur procedure described under question 2.3 will take place (save the provisions contained in interna-tional treaties where this procedure is not necessary) and the judgment creditor will file a claim seeking the recognition and

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1965 (“Washington Convention”).


Section 3.

Bilateral treaties. Countries with whom Spain has signed a bilateral treaty on enforce-ment (for instance, Colombia, El Salvador, Israel, Mexico and Tunisia).

Section 3.

Act 29/2015, of 30 July, on interna-tional legal coop-eration on civil matters (“Legal Cooperation Act”).

All countries not part of any multi-lateral or bilateral convention.

Section 2.

2 General Regime


Civil and commercial enforcement in Spain is governed under the Civil Procedure Act (Ley de Enjuiciamiento Civil ), Book III and, particularly, by the Legal Cooperation Act, Title V.


Any judicial decisions, legally defined as those rendered by a jurisdictional body of any State independently appointed, can be recognised or enforced. With regard to interim measures, recog-nition or enforcement is only available provided that, before its adoption, a hearing took place in the presence of the defendant in circumstances when their refusal would entail a breach of the right to receive an effective legal protection.

With regard to specific subject matters, the only rules to be applied are the European Regulations.


Firstly, note that, save some exceptions (pursuant to certain inter-national treaties), according to the Legal Cooperation Act for the enforcement of foreign judgments, it is necessary beforehand to undergo a formal contentious process for its recognition called “exequatur”. In these cases, it is necessary to supply, along 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 verifying that the defendant was notified with a summoning order; (iii) a document attesting that the ruling is final and enforceable in the country of origin; (iv) the corresponding translations; and (v) the power of attorney.


203King & Wood Mallesons


be competent to hear cases which involve sovereign immunity. Both concepts are construed narrowly by Spanish Courts.

In addition, there are no countries whose judgments are histor-ically subjected to a higher degree of scrutiny in this regard. In this vein, please note that although reciprocity is not requested under the Legal Cooperation Act, the Government could issue a Royal Decree stating that no cooperation will take place with those foreign countries that repeatedly refuse cooperation.

Lastly, note that, in Spain, anti-suit injunctions are not available.


In general, aside from the European Regulations concerning specific subject matters, it is not foreseen that any particular legal framework applies. In this sense, the European Regulations 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.


In the cases highlighted, according to the Legal Cooperation Act, recognition will be refused if it (i) would be irreconcilable with a Spanish ruling, and (ii) cannot be recognised in scenarios where pending proceedings between the parties take place in Spain if they have commenced before the foreign proceedings.


Since Spanish Courts cannot review the merits, the revision will be limited to verifying whether the judgment is against public policy when applying any applicable law to the case. Further, as stated above in question 2.9, if the foreign judgment is irrecon-cilable to a Spanish judgment, it will not be recognised pursuant to the Legal Cooperation Act.


As stated in question 2.10, Spanish Courts will neither review the merits nor the procedural rules that may have been applied. Therefore, the revision will be limited to verifying whether any of the conclusions reached (concerning the legal merits) or the procedure (e.g. whether the parties could properly defend them-selves) amounted to a breach of public policy.


Enforcement in Spain takes place identically throughout the whole territory.

subsequent enforcement of the decision. As stated above in question 2.4, the case will be heard by the First Instance Court or Commercial Court (depending on the subject matter of the judicial decision) of the registered domicile of the defendant or, secondarily, where enforcement will effectively take place or, lastly, the Court at which the claim is filed. In case the enforced company is under insolvency proceedings in Spain, the case will be heard by the Commercial Court that handles such insolvency proceedings if the subject matter is within competence of the latter. In these proceedings, no hearing will take place and the public prosecutor will be involved.

The ruling of the Court recognising the foreign judgment is subject to appeal first before the Appeal Court and, subse-quently, before the Supreme Court following the requirements set forth under the Civil Procedure Act.

Further, along with the exequatur claim, it can also seek enforcement. Enforcement proceedings are governed by the Civil Procedure Act. They commence with a claim (either sepa-rate or along with the exequatur claim) seeking the enforcement of the judgment or award. The claim shall be accompanied with: (i) a copy of the decision (in arbitration, also a copy or the agree-ment and the document verifying its notification to the parties is requested); (ii) the power of attorney; and (iii) any other docu-ments that may be relevant to the enforcement proceedings. The legal clerk will then proceed with the enforcement, rendering an order stating the affected parties and the subject matter of the enforcement, as well as the investigation and research meas-ures aimed to localise the assets of the judgment debtor. Finally, once the assets have been identified they will be allocated (either directly or after being sold) to the judgment creditor.

Please note that in case of opposition to the enforcement of the foreign judgment, the ruling that decides on such opposi-tion can be subject to further appeal. In case of dismissal of the enforcement without opposition, it is also possible to appeal such decision before the Appeal Court.

Lastly, note that, in general, the average time for enforcement is from four months to one year, and that pursuant to Articles 49 and 50.3 of the Legal Cooperation Act, partial recognition or enforcement is possible.


This process cannot entail a revision on the merits, but it is designed to merely verify that formal requirements are met, in order to avoid that an “unfair” judgment is enforced under Spanish law. This revision can be carried out during both the recognition (exequatur) and enforcement stages. Thus, if the legal requirements are met, recognition and enforcement will generally take place.

With regard to the grounds to challenge the recognition, these are summarised in question 2.3. In relation to enforce-ment, the eventual grounds included under the Civil Procedure Act are very limited. In this sense, please note that the debtor could claim that: (i) the limitation period to file the enforcement claim has elapsed; (ii) it has complied with the judgment; (iii) the principal amount of the enforcement is higher than the original penalty; and (iv) other limited procedural grounds (for instance, the lack of capacity of the claimant, the nullity of the judicial order or the lack of capacity of the defendant for being consid-ered as the debtor within enforcement proceedings).

Moreover, if the judgment is against Spanish public policy, it cannot be either recognised or enforced, and according to Article 36.2 of the Civil Procedure Act and Article 21.2 of the Organic Law of the Judicial Power, Spanish Courts would not


204 Spain


With minor differences, it reproduces the requirements set out in the Brussels I Bis Regulation. In this sense, it is noteworthy that in some cases a hearing of the affected party is required (the child or any third party that allege that the judgment affects its parental responsibility) and the lack of this requirement is an additional reason to deny the recognition of the foreign judgment.

In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce: (i) the original or certi-fied true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document; or (ii) any document indicating that the defendant has accepted the judgment unequivocally.

c) Insolvency Regulation: The decisions that can be enforced are those that comply with the definition provided in Article 2 and which fall within its scope, which mainly refer to any resolution issued in the context of an insolvency proceed-ings. It directly refers to the provisions of Brussels I Bis Regulation for the enforcement of such resolutions.

Any Member State could challenge the recognition of an insolvency proceeding opened or the enforcement of any judgment issued within such insolvency proceeding when such recognition or enforcement could produce effects contrary to public policy of such Member State.

d) Succession Regulation: The decisions that can be enforced are those that comply with the definition provided in Article 3.g) and which fall within its scope. It practically reflects the Brussels I Bis Regulation, save some minor differences amongst which there are the interim measures which can be ordered together with the enforcement of the judgment. It also expressly recognises the possibility of partial enforcement.

e) Lugano Convention: The decisions that can be enforced are those that fall within its scope. It basically reproduces the requirements stated in EU Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judg-ments in civil and commercial matters (“Brussels I Bis Regulation”), save the last mention of interim measures, which can be ordered together with the enforcement of the judgment. It recognises the possibility of a partial enforce-ment of a judgment.

f ) NY Convention: The Convention is applicable to any arbi-tral awards that fall within the description stated in Article I. According to Article IV, the parties, in order to obtain recognition and enforcement, shall supply: (i) the duly authenticated original award or a duly certified copy thereof; and (ii) the original arbitration agreement or a duly certi-fied copy thereof. Further, if the said award or agreement is not made in an official language of the country in which the award is enforced, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language, which shall be an offi-cial or sworn translation.

In addition, pursuant to Article V, recognition and enforce-ment of the award may only be refused where: (i) the parties to 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 arbitrator or of the arbitration proceedings or was otherwise unable to present his case; (iii) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitra-tion, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the deci-sions on matters submitted to arbitration can be separated


Spanish case law has clarified that the limitation period is five years as from the date the foreign judgment is made final, pursuant to Article 518 of the Civil Procedure Act.



Find below the answers depending upon the specific regime:a) Brussels I Bis Regulation: The decisions that can be recog-

nised and enforced are those that comply with the definition provided in Article 2.a) and which fall within its scope. Any of these decisions rendered by any Member State shall be auto-matically recognised, without the need of any “exequatur” procedure in this regard. In the same vein, a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.

Having said that, the parties shall supply the following documents: (i) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and (ii) the certificate issued pursuant to the provisions contained in the regulation. Further, where necessary, translation of the documents may be required.

Moreover, in order to be recognised or/and enforced, the judg-ments: (i) must comply with the public policy; (ii) if rendered in default, the defendant should have been served with the docu-ment which instituted the proceedings (or with an equivalent document) in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; (iii) the judgment should not be irreconcilable with a judgment given between the same parties in the Member State addressed; (iv) the judgment should not be irreconcilable either with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed; and (v) the judg-ment cannot conflict with certain sections of the regulation.

The requirements set out above apply to all forms and types of judgments that fall within the scope of the regulation. However, with respect to interim measures, please note that the applicant should provide: (i) a copy of the judgment which satis-fies the conditions necessary to establish its authenticity; (ii) where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment; and (iii) the certificate issued pursuant to the regulation, containing a description of the measure and certifying that: (a) the court has jurisdiction as to the substance of the matter; and (b) the judg-ment is enforceable in the Member State of origin.

b) Brussels II Bis Regulation: The decisions that can be enforced are those that comply with the definition provided in Article 2 and which fall within its scope, which mainly refer to any decision regarding divorce or nullity of the marriage as well as any ruling on the parental responsi-bility of the parents. It also expressly recognises the possi-bility of partial enforcement.


205King & Wood Mallesons


in its Article 46 – with regard to foreign awards – that the exequatur shall be governed by the NY Convention (save any more beneficial conventions) and be conducted by the proce-dure set forth by the civil procedural framework for judgments rendered by foreign Courts.


In this sense, please note that no revision on the merits is possible for either the European Regulations or for the arbitra-tion conventions. Therefore, this answer has been provided in question 3.1 above.

The challenge, where applicable, can be made either at the recognition stage or at the enforcement stage.

4 Enforcement


In order to enforce a judgment, the creditor may principally request the seizure of assets, although in some particular scenarios (for instance, when a company or the majority of shares or participations are seized), a judicial receiver may be also appointed and the creditor may also request to manage the assets seized in order to be repaid with their profits.

In addition, when the legal requirements set forth in the Civil Procedure Act for these purposes are met, interim measures could also be requested (for instance, interim freezing of assets, judicial intervention or receiver of assets, deposit of a movable asset, registra-tion within the Property or Commercial Registry of the claim, prohi-bition to make any act of disposal concerning the assets or properties at stake, the suspension of the effects of corporate resolutions, etc.).

5 Other Matters


There have not been any noteworthy legal developments in the last 12 months.


It is important to meet at the outset all the legal requirements set out in the relevant regulation (including any minor proce-dural requirements as to the translation of the ruling into the official language of the State where the judgment is enforced) in order to avoid relevant delays in the processing of the case. Although, in principle, these proceedings should be relatively straightforward, depending upon the particularities of the case and the specific legal framework applicable, they can become more complex to solve. Another important hurdle is some-times the lack of the necessary knowledge of the process by the competent Spanish Court, which can lead to significant delays.

from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; (iv) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; and (v) the award 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 award was made.

Pursuant to Article V, other grounds available for refusal are: (vi) the subject matter was not arbitrable; and (vii) the award is against public policy. These grounds have been strictly applied by Spanish Courts.

Lastly, it should be noted that enforcement of partial/interim awards is possible.

g) Geneva Convention: This Convention is applicable to controversies arising from commercial international trans-actions. This Convention reflects the same first four requirements as set forth pursuant to Article V of the NY Convention. As stated in point b) above, enforcement of partial/interim awards is possible.

h) Washington Convention: This convention is applicable to arbitral awards issued by the International Centre for Settlement of Investment Disputes (ICSID) regarding the disputes concerning an investment between a Signatory State and a national of another Signatory State. It requires a copy of the award certified by the Secretary-General. Further, according to Article 54.1, each Contracting State shall recognise an award rendered pursuant to the Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judg-ment of a Court in that State. Therefore, no exequatur will be needed. Also, enforcement of partial/interim awards is possible. This convention does not specify any cause of opposition. Therefore, only the causes of opposition to enforcement set forth under the Civil Procedure Act detailed in question 2.7 apply.

The limitation period would be five years, as stated in ques-tion 2.13 above.


The regime for recognition and enforcement is essentially the same. As regards the difference between the legal effect of recognition and enforcement, this answer is the same as the one stated in question 2.5 above.


For the European Regulations and the Washington Convention, no exequatur will be necessary and, therefore, enforcement proceed-ings according to the procedural law applicable to the Member State where the enforcement is made could commence automatically. These proceedings are described in question 2.6 above.

As to the remaining judgments and arbitral awards, exequatur will be mandatory, either by direct application of the Legal Cooperation Act or by the reference to the latter made by the Spanish Arbitration Act 60/2003, of 23 December, when stating


206

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 & Partners and Best Lawyers as one of the best specialists in Dispute Resolution in Spain.

King & Wood MallesonsC/ Goya, 6, 4º plantaC.P. 28001, MadridSpain

Tel: +34 91 426 0050Email: [email protected]: www.kwm.com/en

Recognised as one of the world’s most innovative law firms, King & Wood Mallesons offers a different perspective to commercial thinking and the client experience. With access to a global platform, a team of over 2,000 lawyers in 27 locations around the world works with clients to help them understand 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 thor-ough 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 with us since the office began. We are known for our expertise in a variety of practices including Litigation, M&A, Energy, Banking & Finance, PE, Real Estate, Employment and Tax.

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 a 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 construc-tion 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 MallesonsC/ Goya, 6, 4ª plantaC.P. 28001, MadridSpain

Tel: +34 91 426 0050Email: [email protected]: www.kwm.com/en



Chapter 35 207

Sweden

Advokatfirman Hammarskiöld & Co Caroline Bogemyr

Sandra Kaznova

Sweden

The Swedish Maritime Code.

Parties to the International Convention on Civil Liability for Oil Pollution Damage, the International Convention on Civil Liability for Bunker Oil Pollution Damage, the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (subsidiary to EU regulations).

Questions 2.1 and 3.1–3.4.

Act (2005:253) on Compensation From the International Oil Pollution Damage Funds.

Parties to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (subsid-iary where super-seding EU rules exist).


The Railways Traffic Act (2018:181).

Parties to the Convention Concerning International Carriage by Rail.


Act (1994:2087) by Reason of Sweden’s Accession to the Multilateral Agreement relating to Route Charges.

Parties to the Multilateral Agreement relating to Route charges.


1 Country Finder





The Act (2014:912) with Supplementary Provisions Concerning Court Jurisdiction and Recognition and International Execution of Certain Decisions (the “Supplementary Act”).

The act contains Swedish supple-mentary rules in relation to, e.g., Recast Brussels I, Brussels I, the Lugano Convention, EEO Regulation and the Hague Convention.


New York Convention.

The parties to the Convention.

Questions 2.1 and 2.7.

The Arbitration Act (1999:116) (the “Arbitration Act”).

The rules on recognition and enforcement apply universally. They concur with the New York Convention.


Act (1977:595) on Recognition and Enforcement of Nordic Judgments in Civil Cases.

Very limited scope in relation to Denmark, Finland and Norway since the Lugano/Brussels rules take precedence.


Nuclear Liability Act (1968:45).

Contracting States to the Paris Convention on Nuclear Third Party Liability.



208 Sweden


dispute resolution”. Its impact and importance will, however, depend on the number of states that choose to ratify the conven-tion, and it has not yet entered into force.

As indicated in the table above, there are also various legal acts applying to very specific matters. Please note that rules applicable to matrimonial and family law are not accounted for.

In the absence of specific laws or directly applicable regu-lations, foreign judgments are neither recognised nor enforce-able under Swedish law. However, even in a situation where a foreign judgment is not recognisable or enforceable in Sweden, a Swedish court may still award the foreign judgment evidential value regarding factual circumstances in Swedish court proceed-ings regarding the same matter. The Supreme Court has in its ruling NJA 1973 (p. 628) dealt with a situation where a proroga-tion clause conferred exclusive jurisdiction to a foreign country but judgments from that jurisdiction were not enforceable in Sweden at that time. In that case, the Supreme Court concluded that it was possible for a Swedish court to render a judgment based on the foreign judgment, unless the judgment would, for example, be manifestly incompatible with Swedish public policy, including fundamental principles safeguarding a fair trial.

Arbitral awards are enforceable in Sweden pursuant to the Arbitration Act. The enforcement rules in the Arbitration Act apply generally to all foreign arbitral awards, without any geographical limitation and otherwise reflect the rules of the New York Convention, to which Sweden has acceded. It should be added that the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”) has a long-standing repu-tation as one of the world’s leading forums for dispute resolution and is a popular choice also for international parties.


In the absence of a general framework there is no general defi-nition but the term ‘judgment’ may often have a broad meaning. According to the Brussels/Lugano rules, ‘judgment’ means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. Recast Brussels I also includes interim and protective measures in the definition. The definition of the Hague Convention is similar to the Brussels/Lugano rules (excluding interim or protective measures).

As to the other specific regimes listed in question 1.1, refer-ence has to be made to the specific legislation applicable in each case, but since they refer to international conventions and trea-ties, guidance can often be sought in the underlying interna-tional instrument.

Arbitral awards are, as noted above, recognisable and enforce-able in Sweden pursuant to the Swedish Arbitration Act.


A judgment which is enforceable pursuant to the Brussels/Lugano rules or the Hague Convention may not under any circumstances be reviewed as to its substance. The judgment must satisfy conditions necessary to establish its authenticity and, as a matter of fundamental procedural principles, it must be possible to identify the parties as well as the obligation for which enforcement is sought.

The judgment must be enforceable in its country of origin, but does not have to be final in the sense that it can no longer be appealed.

Act (1983:1015) by Reason of Sweden’s Accession to the Convention of April 6 1974 on Code of Conduct for Liner Conferences.

Parties to the Convention on a Code of Conduct for Liner Conferences.


Act (1969:12) by reason of Sweden’s Accession to the Convention of May 19 1956 on the Contract for the International Carriage of Goods by Road.

Parties to the Convention on the Contract for the International Carriage of Goods by Road.


Act (1996:519) on the Enforcement of Judgments and Decisions rendered under the United Nations Convention on the Law of the Sea of December 10 1982.

Parties to the United Nations Convention on the Law of the Sea (“UNCLOS”).


2 General Regime


Foreign judgments are only recognised and enforceable in Sweden to the extent that there is explicit legislation to that effect. There is no general regime applicable. The Brussels/Lugano rules are the most significant rules and the closest to a general regime with regard to recognition and enforcement of foreign court judgments in Sweden. Recast Brussels I applies to judgments from EU Member States, where the legal procedures started in the country of origin on or after 10 January 2015. If the procedures started before then, Brussels I applies.

The Lugano Convention applies to judgments given in one of the EFTA Member States: Iceland; Norway; or Switzerland.

As a member of the EU, Sweden is also a contracting party to the Hague Convention (see the EU chapter). However, awaiting ratification by the US and China, enforcement according to the Hague Convention is only relevant with respect to judgments from Mexico, Singapore and Montenegro. Since the rules on recognition and enforcement in the Hague Convention have many similarities with Brussels I and the Lugano Convention, the Hague Convention is also covered in the section concerning general regimes.

It may also be noted that the Hague Conference on Private International Law (“HCCH”) and its delegates on 22 July 2019 concluded the text of a new treaty concerning cross-border recognition and enforcement of civil and commercial judgments (The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters/The Hague Judgments Convention). The convention aims to improve the international enforceability of commercial court judgments and to be an equivalent to the New York Convention (which regu-lates enforcement of arbitral awards). The convention has been described by the HCCH as a “gamechanger in international


209Advokatfirman Hammarskiöld & Co


6. In case of a default judgment, a certified copy of a docu-ment showing that the document through which the legal proceedings were initiated was properly served on the opposite party.

In addition to Swedish documents, the courts can typically be expected to accept documents in Danish, Norwegian or English. Documents in other languages should be submitted in translated copies.

Where an application for recognition or enforcement is to be made pursuant to other regimes than the Brussels/Lugano rules, the specific legislation should be reviewed to ensure that the right documents are submitted. Requirements often include all or some of the documents listed above, but this may vary.

The competent district court is primarily the district court in the place of domicile of the party against whom enforce-ment is sought, according to a list in the ordinance (2014:1517) regarding recognition and enforcement of certain foreign judg-ments in private matters. This list partly deviates from the usual geographical competence of the Swedish courts since the only competent court for the Stockholm county is the Nacka District Court. In the event that the party against whom enforcement is sought is not domiciled in Sweden, the Nacka District Court is the competent court. The corresponding procedure applies to most of the other specific regimes mentioned in question 1.1, as a result of a legislative reform in 2015, but since these regimes concern very specific matters the details are not further described here. Before the change in 2015, the Svea Court of Appeal used to be the competent court.

An application for the enforcement of an arbitral award is to be submitted to the Svea Court of Appeal. The award should be submitted in the original or a certified copy. Although Swedish is the official language, the Court of Appeal generally accepts that awards are submitted in Danish, Norwegian or English. The counter-party will then be provided an opportunity to respond. In case the counter-party invokes that the award is not enforceable due to lack of an arbitration agreement, the appli-cant has to submit other evidence proving a valid arbitration agreement. The arbitration agreement should be submitted in the original or a certified translation.

Once the court has declared the judgment or award enforce-able, it can be enforced through the Enforcement Authority; see further section 4.


Judgments that are recognised and enforceable pursuant to Recast Brussels I are recognised and enforceable without any special procedure. However, an interested party may apply to the competent district court for refusal of recognition or enforcement. The grounds for challenge are limited to the ones set out in Articles 45 of Recast Brussels I.

Where an application for enforcement is based on Brussels I and the Lugano Convention, the party against whom enforce-ment is sought is not entitled to make any submissions before the court renders its decision. If the court declares the judg-ment enforceable, the decision is to be served on the opposite party. That party may then challenge the decision at the court who gave the decision, based on the grounds stated in Articles 33 and 34 of Brussels I, which correspond to Articles 34 and 35 of the Lugano Convention and Article 45 points 1(a)–(d) of Recast Brussels I.

An appeal against a declaration for enforcement is to be lodged within one month of service thereof if the party against whom enforcement is sought is domiciled in Sweden and

However, if the party against whom an application for decla-ration of enforcement is made invokes that the judgment is, or may still be, subject to appeal, the Swedish court is to stay the proceedings until the outcome of the appeal is known.

Although the official language is Swedish, the courts and the Enforcement Authority also accept foreign judgments that are submitted in Danish, Norwegian and often English.

With regard to arbitral awards, the provisions in the Arbitration Act concerning enforcement of foreign arbitral awards concur with the New York Convention. See further question 2.7 below.


The judgment must fall within the scope of the applicable legis-lation/international instrument.


Recognition is understood as awarding a foreign judgment legal consequence and finality. A recognised foreign judgment would, for example, prevent a Swedish court from hearing the same matter. Enforcement refers to the judgment’s ability to serve as an enforcement order, thus enabling the foreclosure or attachment and sale of the debtor’s property in case of non-com-pliance with the judgment. Recognition is a precondition for the enforcement of the judgment.


A judgment which is enforceable pursuant to Recast Brussels I is recognised without any special procedure and enforceable in the same manner as a Swedish judgment, i.e. with the assistance of the Swedish Enforcement Authority (Sw: Kronofogdemyndigheten). A certificate pursuant to Articles 37 and 53 of the Recast Brussels I should be submitted together with the application for assistance. See further section 4 below.

As regards judgments that are enforceable pursuant to Brussels I, the Lugano Convention or the Hague Convention, an application for declaration of enforcement (exequatur) is to be submitted to the competent district court; see further below.

If enforcement is sought pursuant to Brussels I, the applicant should submit:1. A certified copy of the judgment.2. An address or details of a representative in Sweden or the

EEA for service of process of the counter-party.3. Power of attorney and relevant supportive documents

proving the authority of its representative.4. A certificate pursuant to Article 53 of Brussels I.

If enforcement is sought pursuant to the Lugano Convention, the following should be submitted:1. A certified copy of the judgment.2. An address or details of a representative in Sweden or the

EEA for service of process of the counter-party.3. Power of attorney and relevant supportive documents

proving the authority of its representative.4. A certificate showing that the judgment is enforceable in

the state where it was given.5. Document showing that the judgment has been served on

the opposite party.


210 Sweden


In general, a foreign judgment which is recognised in Sweden will prevent Swedish courts from ruling on the same subject matter between the same parties, unless the proceedings in Sweden were initiated first. However, in the absence of a general framework, the question must be analysed in relation to the applicable regime at stake.

As for judgments that are only recognised following an applica-tion, such as pursuant to the Hague Convention, the Swedish court where the local proceedings are pending would probably stay the proceedings until the application for recognition or enforcement has been finally determined. In the legal literature and preparatory works it has further been argued that ongoing legal proceedings in a foreign jurisdiction that can be expected to result in a judgment capable of recognition in Sweden would hinder Swedish courts from trying the same matter, but in the absence of specific legislation to the contrary, the courts may have some discretion. See, for example, Bogdan M., Svensk internationell privat- och processrätt, 7 ed., Norstedts Juridik, p. 312.


As a main rule, conflicting local laws or precedents regarding the same or similar issue but between different parties do not prevent the recognition and enforcement of foreign judgments in Sweden. As explained under question 2.7 above, the recog-nition and enforcement of a foreign judgment may, however, be impossible where the judgment is incompatible with Swedish public policy, i.e. where the judgment in question is incompat-ible with the foundations of the Swedish legal order.


The purported application of Swedish law in a foreign judgment does not generally pose any problem nor does it affect the ques-tion of recognition or enforceability since the Swedish courts do not review the substance of the foreign judgment.


No. Sweden is a centralised country without any legal differ-ences as to international private law amongst the different regions, counties, etc.


There is no clear answer to this question since it is not addressed in legislation and there is little case law. As a general comment it should be noted that limitation of claims is considered to be a matter of substantive law. In private law disputes, any of the parties must raise the issue of limitation in order for the courts to consider it.

In a decision rendered in 2011, the Svea Court of Appeal held that Swedish courts cannot refuse enforcement pursuant to Brussels I based on an argument that the claim is no longer actionable, since limitation of claims is not a ground for chal-lenge pursuant to Brussels I. See decision by Svea Court of Appeal on 22 December 2011 in the matter Ö 9553-11.

otherwise within two months. It could be noted that whereas the Brussels/Lugano rules refer to this procedure as an “appeal”, the Swedish legislation and courts use the term application for “variation” (change) for the procedure where a decision is to be reviewed by the same court who gave it.

The district court’s decision on appeal (“variation”) may be appealed to the appellate court but this requires that the appel-late court grants leave to appeal.

The grounds for challenge that are recognised in the Brussels/Lugano rules can be summarised as situations where recognition would be manifestly contrary to public policy (ordre public), or where a default judgment has been rendered without the defendant being served in a manner enabling him to defend himself properly, or where the judgment is irreconcilable with a judgment given between the same parties in Sweden or a judgment given elsewhere involving the same parties and the same cause of action, provided that the judg-ment fulfils the conditions necessary for its recognition in Sweden.

The Hague Convention also provides that enforcement can be challenged due to lack of a valid agreement on prorogation, procedural fraud as well as in the case of damages that do not compensate a party for actual loss or loss suffered, such as exem-plary or punitive damages.

The above-stated grounds for challenge based on ordre public, default judgments where the defendant has not been provided a fair opportu-nity to defend himself, other fundamental procedural errors depriving a party of its right to a fair trial, conflicting judgments between the same parties that are capable of being recognised in Sweden and lack of a valid prorogation agreement are generally accepted grounds for challenging recognition or enforcement of foreign judgments in Sweden. With regard to ordre public, the Swedish Supreme Court has in a recent ruling in a family law matter declared that, although the general requirements for giving a foreign judgment legal effect in Sweden per se are fulfilled, such effect could be prevented if it would be contrary to the foundations of the Swedish legal system. The Supreme Court also declared that what is considered as ordre public changes over time as the ethical values and norms which constitute the foundation of the Swedish legal system are changing; see the Supreme Court’s ruling in Ö 3462-18.

Specific regimes other than the ones mentioned above (see ques-tion 1.1) may, however, contain specific grounds for challenge.

As regards the grounds for challenging an arbitral award, the Arbitration Act concurs with the grounds stated in the New York Convention.


As stated initially, there is no general legal framework appli-cable to recognising and enforcing foreign judgments but there are several specific rules, ranging from the broader Brussels/Lugano rules and the Hague Conventions to legislation that covers very specific subject matters relating, for example, to transport law, environmental damage, etc.


Judgments that are subject to the Brussels/Lugano rules are recog-nised in Sweden without any special procedure. A conflicting local judgment between the same parties is a further ground for challenge pursuant to the Brussels/Lugano rules and the Hague Convention.


211Advokatfirman Hammarskiöld & Co



See question 2.7 above.

4 Enforcement


The Swedish Enforcement Authority (Sw: Kronofogdemyndigheten) is the authority that is entrusted with the actual enforcement. A party seeking assistance should submit a written application, signed by the party or the party’s counsel. The application forms are available on the authority’s webpage and are also available in English (see https://www.kronofogden.se.html). The applicant is to submit a certified copy of the judgment and, if applicable, the court decision granting enforcement.

5 Other Matters


No. It should be noted that as of 1 March 2019 certain changes of the arbitration act entered into force, but those changes do not affect the rules on enforcement of foreign arbitral awards.


As mentioned above, there is no general, domestic regime for the recognition or enforcement of foreign judgments in Sweden, so it is important to inquire what the applicable rules are in the specific case. In an international comparison, Swedish courts can generally be said to be well functioning and efficient. Applications for a declaration of enforcement are free of charge.

A party applying for recognition and enforcement of a foreign judgment may be obligated to ensure the translation of the judgment. Pursuant to Section 10 of the Language Act (2009:600), the official language in the courts is Swedish. However, the courts tradition-ally accept documents in Danish or Norwegian and often English. In the Supreme Court ruling NJA 2011 (p. 345), the Supreme Court found that a party may be ordered to bear its own costs of translation when relying on a foreign judgment. The claimant had submitted a judgment in the German language and applied for a declaration of enforcement pursuant to Brussels I. The application was denied as the claimant refused to comply with an order to provide a translation.

As regards Brussels I and the Lugano Convention, it should also be noted that although the annexes of these instruments refer to Svea Court of Appeal as the competent court, this was changed in 2015 and applications should now be submitted to the competent district court. See question 2.6 above.

It should also be noted that it is not yet clear what the exact impact of Brexit will be with regard to recognition and enforce-ment of judgments. Thus, Brexit may affect the above answers when it comes to recognition and enforceability of judgments in relation to the UK.

There are also some precedents concerning enforcement of judgments in family law matters that are worth mentioning, although it is difficult to say to what extent the courts would consider them relevant in commercial matters. The courts have in their rulings considered the specific regime and the corre-sponding Swedish rules on which application for enforcement is based, including preparatory works relating to the particular legislation. In a precedent from 1930, concerning claims for maintenance between spouses, the Supreme Court held that the question of limitation was a matter of substantive law, in accord-ance with the principle referred to in the first paragraph above. Based on that view, the Supreme Court held that the question of whether or not the claim was actionable should be decided based on the foreign law applicable to the agreement between the spouses. There are also some precedents concerning child maintenance where the Supreme Court and appellate courts have concluded that certain specific limitation rules in substan-tive Swedish family law did not hinder enforcement of the foreign judgment; see, e.g., NJA 1984 p. 25.



Apart from the Brussels/Lugano rules and the Hague Convention, the only specific regime applicable to judgments from certain countries that has any (albeit very limited) use in commercial matters today is the Act (1977:595) on Recognition and Enforcement of Nordic Judgments in Civil Cases. This Act provides that certain Nordic execution titles that are not enforceable pursuant to the Brussels/Lugano rules are enforce-able without any special procedure, such as certain Danish and Norwegian promissory notes, decisions by the Finnish execu-tion authority and Danish settlements. The assistance of the Swedish Enforcement Agency may hence be sought directly.


The general distinction between recognition and enforcement applies; see question 2.5 above.


As regards specific regimes, other than the Brussels/Lugano rules and the Hague Convention, reference has to be made to the specific legislation. In most cases, an application for recog-nition and enforcement is to be made to the competent district court as set out in question 2.6 above.


212

Sandra Kaznova is the Managing Partner of Hammarskiöld & Co. She has extensive experience in representing Swedish and international clients in domestic and international arbitration as well as before Swedish courts. Mrs Kaznova also sits as arbitrator. Her experience covers disputes in a wide range of areas including, for example, the sale and purchase of goods, insurance, loans, trade secrets, intellectual property rights, IT contracts, and professional liability claims. She is a member of the Executive Committee of the Swedish Arbitration Association and a board member of Swedish Women in Arbitration Network.

Advokatfirman Hammarskiöld & CoNorra Bankogränd 2 103 17 StockholmSweden

Tel: +46 70 881 05 58Email: [email protected]: www.hammarskiold.se

Hammarskiöld & Co is one of Sweden’s leading business law firms. The firm’s client base includes major companies, banks, insurance companies, state-owned companies, municipalities and public or supranational institu-tions both in Sweden and internationally. Hammarskiöld & Co has vast experience in commercial litigation, national and international arbitration, and alternative dispute resolution (ADR). Hammarskiöld & Co represents clients in a broad range of disputes and matters before local Swedish courts and also participates in numerous arbitration matters, primarily under the Rules of the International Chamber of Commerce and the Stockholm Chamber of Commerce. In addition, the firm’s litigation lawyers also handle other institutional and ad hoc arbitration proceedings.

www.hammarskiold.se


Sweden

Caroline Bogemyr is an Associate at Hammarskiöld & Co. She advises both Swedish and international clients on a broad range of the firm’s practice areas, with a special focus on Dispute Resolution, Employment Law, Corporate Commercial matters and matters related to the General Data Protection Regulation (GDPR). Caroline Bogemyr has represented clients before the public courts of Sweden as well as arbitra-tion proceedings under the rules of the Stockholm Chamber of Commerce.

Advokatfirman Hammarskiöld & CoNorra Bankogränd 2103 17 StockholmSweden

Tel: +46 73 394 45 37Email: [email protected]: www.hammarskiold.se



Chapter 36 213

Switzerland

Bär & Karrer Ltd. Aurélie Conrad Hari

Saverio Lembo

Switzerland

Treaty between Switzerland and Italy on the recognition and enforcement of judgments dated 3 January 1933 (amended on 1 January 2011)

Switzerland and Italy

Section 3

Treaty between Switzerland and Spain on the recip-rocal enforce-ment of judgments or decisions in civil and commer-cial matters of 19 November 1896 with its additional protocol (amended on 1 January 2011)

Switzerland and Spain

Section 3

Treaty between Switzerland and the Czechoslovak Republic on the reciprocal enforce-ment of judgments of 21 December 1926 with its addi-tional protocol (amended on 1 January 2011)

Switzerland, the Czech Republic and Slovakia

Section 3

Treaty between Switzerland and Sweden on the recognition and enforcement of judgments and arbitral awards dated 15 January 1936 (amended on 1 January 2019)

Switzerland and Sweden

Section 3

1 Country Finder





Treaty between the Swiss Confederation and the Principality of Liechtenstein on the recogni-tion and enforce-ment of judgments and awards dated 25 April 1968 (amended on 28 August 2014)

Switzerland and Liechtenstein

Section 3

Treaty between Switzerland and the Republic of Austria on the recognition and enforcement of judgments dated 16 December 1960 (amended on 1 January 2011)

Switzerland and Austria

Section 3

Treaty between Switzerland and the German Reich on the recognition and enforcement of foreign judg-ments and arbi-tral awards dated 2 November 1929 (amended on 1 January 2011)

Switzerland and Germany

Section 3


214 Switzerland


Convention on jurisdiction and the recognition and enforcement of judgments in civil and commer-cial matters dated 30 October 2007 (revised Lugano Convention (LC)) (amended on 8 April 2016)

European Union, Denmark, Iceland, Norway and Switzerland

Section 3

New York Convention on the Recognition and enforce-ment of Foreign Arbitral Awards dated 10 June 1958 (amended on 10 January 2018)


Section 3

Swiss Private International Law Act (PILA)

All countries to which none of the above specific conventions apply

Section 2

Swiss Civil Procedural Code (CPC)


Section 2

Swiss Debt Enforcement and Bankruptcy Act (DEBA)


Section 2

2 General Regime


Under Swiss law, in the absence of an applicable international legal instrument (e.g. the revised Lugano Convention (LC) dated 30 October 2007), the Swiss Private International Law Act (PILA) applies to govern the conditions of recognition and enforcement of foreign decisions (Art. 1 para. 1 lit. c and para. 2 PILA), in particular the general provisions found in its first chapter, fifth section.

With regards to recognition of foreign decisions on foreign insol-vency (Art. 166–174 PILA), foreign composition with creditors (Art. 175 PILA) and foreign arbitral awards (Art. 194 PILA), specific provisions in the chapters dealing with these subject matters apply.

With regards to the enforcement of foreign decisions, pecu-niary debt is subjected to the Swiss Debt Enforcement and Bankruptcy Act (DEBA) and specific performance is subjected to the Swiss Civil Procedural Code (CPC).

In order to interpret the statutes, one can refer to case law, among other sources.


Under Swiss law, in principle, a foreign decision is considered to be any decision made by a judicial authority acting de jure imperii.

Treaty between Switzerland and Belgium on the reciprocal enforce-ment of judg-ments and arbitral awards of 29 April 1959 (amended on 1 January 2011)

Switzerland and Belgium

Section 3

Hague Convention for the protection of cultural prop-erty in the event of armed conflict of 14 May 1954 (amended on 6 March 2018)


Section 3

European conven-tion on recogni-tion and enforce-ment of decisions concerning custody of chil-dren and on resto-ration of custody of children of 20 May 1980 (amended on 31 January 2013)

Andorra, Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and United Kingdom

See the EU Chapter

Convention on the recognition of divorces and legal separations of 1 June 1970 (amended on 18 October 2013)

Albania, Aruba, Australia, China, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Hong Kong, Italy, Luxembourg, Moldova, Netherlands, Norway, Poland, Portugal, Slovakia, Sweden, Switzerland and the United Kingdom

Section 3


215Bär & Karrer Ltd.


could directly ask for enforcement. Finally, the interested party has the option to ask for recognition and enforcement simultaneously.

Depending on the path the judgment creditor follows, the decision on recognition may or may not have a res judicata effect. When recognition is assessed by the court as a prejudicial ques-tion in the context, for example, of an application for enforce-ment of the foreign judgment, the decision of the Swiss court would only bind the parties in that specific dispute, meaning that it would not have a res judicata effect in other cases. In order for the decision on recognition to have a full res judicata effect, recognition must be the subject matter of the application to the court and not only a prejudicial question.


Recognition of foreign decisions is governed by the PILA and the CPC. These statutes provide for several different proce-dures available to the parties:■ application for recognition of a foreign decision by way of

an action for a declaratory judgment if the requestor has a legitimate interest to lift uncertainty;

■ application for the issuance of a declaration of enforce-ability of the foreign decision, without applying for its enforcement (Art. 28 PILA); and

■ reliance of a party on a foreign decision with respect to a preliminary issue: the authority before which the case is pending may itself rule on the recognition (Art. 29 para. 3 PILA). This is often the case when a party files an applica-tion for enforcement of a foreign decision, without having previously had a decision on its recognition.

The law applicable to the enforcement of a foreign decision, and thus the procedure to follow, depends on the type of claim the judgment creditor has:■ pecuniary claims must be enforced according to the

DEBA, and alternatively, the CPC; and■ enforcement of any other claim is directly submitted to the

CPC (Art. 335–352 CPC).Along with the application for recognition and enforcement,

the party must submit the following documents:(a) the original decision or a full certified copy;(b) a statement certifying that the decision is final or may no

longer be appealed in the ordinary way. If enforcement is also requested, a certificate of enforceability of the judg-ment should also be provided in order to document the enforceability, even though the production of such certifi-cate is not a legal requirement; and

(c) in case of a default judgment, an official document estab-lishing that the defaulting party was given proper notice and had the opportunity to present its defence. It is usually enough to prove that the defendant has had enough time to present its defence and could have attended the first hearing in front of the foreign tribunal.

Enforcement proceedings are, in principle, summary proceed-ings, which are cheaper and quicker than the ordinary proceed-ings. These proceedings are quicker mainly because parties need to prove their case by way of documentary evidence (phys-ical records). Other means of evidence could be accepted by the judge if the party can provide it immediately, in order to avoid any delay in the proceedings. Finally, the proceedings can be oral or written, at the discretion of the court.

Recognition and enforcement must be brought in front of the first instance court, which differs in each canton. It is possible to appeal the first instance decision, at first to the Cantonal Appeal Court and then to the Swiss Federal Tribunal.

It is irrelevant whether this authority is judiciary, administrative or even religious. Such judgment is to be final and binding (see question 2.3 below).


According to the general provisions under the PILA, a foreign decision is recognisable in Switzerland when (Art. 25 PILA):(a) the foreign judiciary and administrative authorities who

rendered the decision had jurisdiction (Art. 26 PILA);(b) the decision is final or could not be subject to any ordinary

appeal; and(c) there is no ground for denial of recognition set in Art. 27

PILA.Recognition of a foreign decision must be denied:

■ if it is contrary to Swiss public policy (Art. 27 para. 1 PILA); and

■ if a party establishes (Art. 27 para. 2 PILA): ■ that it did not receive proper notice, under either the law

of its domicile or that of its habitual residence, unless such party proceeded on the merits without reservation;

■ that the decision was rendered in breach of funda-mental principles of the Swiss conception of proce-dural law, including the fact that the said party did not have an opportunity to present its defence; or

■ that a dispute between the same parties, with the same subject matter, is the subject of pending proceedings in Switzerland or has already been judged there, or that it was judged previously in a third state, provided that the latter decision fulfils the conditions for its recognition.

Once a decision is recognised following the above-mentioned rules, it shall be declared enforceable upon request (Art. 28 PILA).

Unlike the LC (see question 3.1 below), the PILA is silent on the question of the recognition and enforcement of inter-locutory orders (“mesures provisoires”) and there is no clear and uniform practice by the Swiss courts on this matter.


There is no particular requirement as to the connection to the juris-diction, although a recognition is likely to be denied if the applicant has no interest in a recognition in Switzerland. As a consequence, the applicant should be in a position to demonstrate a legitimate interest in having the judgment recognised in Switzerland for a Swiss court to accept its jurisdiction. Further, as highlighted previ-ously (see question 2.3 above), the judgment, to be recognised, must have been issued by a competent court as the lack of jurisdiction of the court in the state of origin would be a ground to dismiss the recognition by a Swiss court (Art. 25 para. 1 lit. a PILA).


In Switzerland, there is a difference between recognition and enforcement; recognition of a decision is the natural prerequisite to its enforcement. Nevertheless, a decision can be recognised without being enforced. Also, recognition could be automatic depending on the applicable law, in which case the interested party


216 Switzerland


when a dispute between the same parties and with the same subject matter has already been judged in Switzerland, or it was judged previously in a third state, provided that the latter decision fulfils the conditions for its recognition (Art. 27 para. 2 lit. c PILA; see question 2.2 above).

This principle is closely linked to the principle of lis pendens: if the foreign court was seized before the Swiss court, the latter must suspend the proceedings until the foreign court has rendered its judgment (Art. 9 PILA). Nonetheless, if the legal proceedings were first commenced abroad and subsequently in Switzerland, but the parties did not chal-lenge the Swiss court’s jurisdiction on this ground, the Swiss judgment wins over the foreign one once it comes into legal force. Also, when there are two or more recognis-able foreign decisions on the same issue between the same parties, what matters is when the first decision was rendered, and not when the first legal proceedings were commenced.

(b) Recognition and thus enforcement in Switzerland are denied when a dispute between the same parties and with the same subject matter is the subject of pending proceed-ings in Switzerland. For instance, this is the case when legal proceedings were commenced first in Switzerland, even though the foreign court was faster in rendering its decision.


Under Swiss law, to grant recognition, a foreign decision cannot be reviewed on the merits (Art. 27 para. 3 PILA). Insofar as the judgment does not substantively breach Swiss public policy, the court cannot review the merits of the case. However, when enforcing the foreign decision, the Swiss court must analyse the merits of the case and “translate” the judgment into concepts known by Swiss law in order to render it compatible and enforce-able under the Swiss legal system.

For the above-stated reasons, conflicting Swiss laws or prece-dents between third parties, if they do not belong to the realm of Swiss public policy applicable to the recognition and enforcement of foreign decisions, are not going to be taken into account by the court.


No matter the applicable substantive law to a foreign judgment, it belongs to the merits of the case that cannot be reviewed by the Swiss courts unless it breaches Swiss public policy (see question 2.10).


Historically, each canton had its own civil procedural set of rules. However, since 2011, recognition and enforcement proceedings have been harmonised throughout the country and the Swiss Federal Civil Procedural Code is now applicable to the entire territory.

Nevertheless, and even though the applicable law is now unified, each canton still has its own judicial and debt enforce-ment authorities. As a consequence, although the rules are the same, their application can deviate from one canton to


Recognition and enforcement proceedings are contradictory proceedings (unlike under the LC where the first instance proceed-ings are ex parte) governed by regular procedural rules. The opposing party may thus present its defence against enforcement of a foreign decision as early as in front of the first instance judge.

Regarding procedural grounds to challenge recognition, please see question 2.2 above.

A number of substantive grounds allow the debtor to chal-lenge the enforcement of the foreign decision. As the latter would be recognised by Swiss courts, only the facts which are posterior to the foreign judgment may be invoked by the parties.

To challenge the enforcement of a pecuniary claim, the judg-ment debtor may, on the merits, argue that:■ the debt was already totally or partially paid;■ the claim has reached the statute of limitations; or■ the creditor has granted a respite.

Enforcement of specific performance obligations can be chal-lenged on the following grounds:■ the obligation is subject to a condition precedent (Art. 151

para. 1 Swiss Code of Obligations (SCO));■ the performance is subordinated to a counter-perfor-

mance (Art. 82 and 83 SCO);■ the obligation is extinguished;■ set off has occurred; and■ the claim reached the statute of limitations.

The court does not benefit from much discretion in its analysis.The conditions for recognition and enforcement are to be

found in the law and there is not much room for interpretation. Regarding abstract grounds such as public policy, the courts tend to have a restrictive approach to favour as much recogni-tion as possible. In order for the latter to be refused, the viola-tion of Swiss public policy must be gross.

On a final note, to protect itself before the launch of any enforce-ment proceedings, the judgment debtor may file a pre-emptive brief to the first instance court of the cantons where he fears that the judgment creditor might file an application for ex parte measures (unlike the regime under the LC where no pre-emptive brief can be taken into consideration by the first instance judge). Such briefs are usually valid for six-month periods, which can be renewed.


Regardless of the subject matter, the general provisions of the PILA on recognition and enforcement of foreign decisions are applicable (Art. 25ff PILA) (see question 2.2 above). Yet, these general provi-sions provide for the application of specific provisions, if any.

Thus, one always needs to refer to the specific section of the PILA dealing with the subject matter of the foreign decision in order to apply any lex specialis. Such lex specialis exist, among others, regarding filiation, matrimonial regime, divorce and separation, inheritance, protection of adults and children, adop-tion, intellectual property, trusts, property law, etc.


(a) Recognition and thus enforcement in Switzerland are denied


217Bär & Karrer Ltd.


Finally, it is worth mentioning that in order for a foreign judg-ment given in default of appearance to be declared enforceable under the LC in Switzerland, the defendant must have been regu-larly served with the document that instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence (Art. 34 para. 2 LC). Switzerland made a reservation to this article in order to strengthen the protection of the defaulting party; Switzerland would refuse enforcement of a judgment given in default of appearance when the defendant was not regularly served, even though the defendant could have commenced proceedings to challenge the judgment. As such, Switzerland is more strict than other LC Member States.


Under the LC, recognition is automatic and thus does not neces-sarily require any specific proceedings. Similarly to the PILA (see question 2.3), the creditor may directly file for enforcement without having the foreign decision recognised in a prior and separate proceeding.


If the judgment creditor wants to have his foreign judgment declared enforceable in Switzerland under the LC, the following documents need to be produced (Arts 41, 53 and 54 LC):■ a certified copy of the judgment; and■ a certificate of enforceability issued by the foreign court

or authority using the standard form set out in Annex V of the LC or any equivalent document. The foreign judgment needs to be enforceable in the country of origin, regardless of whether it is final or not.

The Swiss court might ask for the translation of the docu-ments (Art. 55 para. 2 LC).

There is no analysis of the compatibility of the judgment with Swiss public policy or other grounds for refusal at this stage (Art. 41 LC).

Unlike the PILA proceedings, the proceedings to declare a foreign judgment enforceable in Switzerland under the LC are not adversarial; once the formalities stated above are completed, the judgment is immediately declared enforceable (Art. 41 LC). It is only after the end of the first instance proceedings that the Swiss judgment declaring enforceability is served to the opposing party (Art. 42 para. 1 LC).


Under the LC, similarly to the PILA, the merits of the case are not reviewed and thus merit-based defences cannot be raised (Art. 45 para. 2 LC). As to the grounds for refusal, please refer to question 3.1.

another. This is typically the case in respect of the recogni-tion of foreign interim measures that can be granted more or less easily depending on the canton where such requests are filed. Finally, one needs to keep in mind that proceedings in Switzerland might be in French, German or Italian, depending on the canton in which they are conducted.


There is no limitation period to recognise a foreign judgment. Similarly, there is no limitation period to enforce a claim.

Swiss law considers statutes of limitations as a substantive matter, subject to the applicable law to the merits of the case.

As such, if the claim is time-barred, the debtor can validly challenge its enforcement.

In a case where Swiss law is applicable to the merits and the judgment establishes the claim, the statute of limitations lasts 10 years from the date of the judgment (Art. 137 SCO).



All bilateral treaties set out in question 1.1 have, today, a limited scope in practice. Indeed, they are most often replaced by more recent conventions, such as the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters dated 30 October 2007 (LC), and thus lack relevancy. Also, in Switzerland, the most lenient regime should apply to questions of recognition and enforcement, which in most cases is the PILA or multilateral conventions. Therefore, these bilateral treaties, as well as conventions on specific matters, will not be discussed in this chapter.

In Switzerland, the most relevant treaty in respect of recog-nition and enforcement is obviously the LC, on which we will focus in this chapter.

Under the LC, the judgment must be final and binding to be subject to recognition and enforcement and no ground for refusal shall exist. The party against whom recognition is sought may apply for the stay of the Swiss proceedings if the foreign judg-ment is not final or an appeal has been filed against it (Art. 46 LC).

Since the first instance proceedings are not contradictory, grounds for refusal can only be raised and shall only be examined by the appeal court. Once served with the Swiss decision declaring enforceability of the foreign one, the opposing party can launch an appeal (Art. 43 LC). The grounds for refusal from which he can benefit from are limited and are set out in Arts 34 and 35 of the LC (Art. 45 para. 1 LC). In essence, recognition shall be refused if the judgment is:■ manifestly contrary to Swiss public policy;■ irreconcilable with a judgment given in a dispute between

the same parties in the State in which recognition is sought; ■ irreconcilable with an earlier judgment given in another

State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in Switzerland; and

■ rendered in violation of an exclusive jurisdiction under the LC (Art. 22 LC). Otherwise, the Swiss court may not review the jurisdiction of a Member State.


218 Switzerland


■ the threat of a criminal sanction (a fine for contempt of court) or financial penalty;

■ the use of direct constraint (coercive imprisonment is forbidden in Switzerland);

■ an order for surrogate measures (a third person must perform the obligation in lieu of the debtor); and

■ the conversion of the specific performance into a pecu-niary performance (ultima ratio).

The requesting party can also apply for interim measures that could be granted on an ex parte basis.

5 Other Matters


Following the amendment of the PILA from the 16 March 2018, new provisions regarding the recognition of foreign bankruptcy have entered into force on 1 January 2019.

This new regulation, provided for in Art. 166ff PILA, aims at modernising the Swiss regime by facilitating the recognition of foreign bankruptcy decisions. To this end, the new provisions no longer require compliance with the principle of reciprocity nor that the decision be given in the State in which the debtor’s registered office is located.

This amendment provides better protection for all creditors. Indeed, under the former law, if a foreign bankruptcy decision was not recognised, there was a risk that a creditor would opt for individual enforcement proceedings and be paid off to the detri-ment of other creditors.

The revised provisions thus simplify the recognition of foreign bankruptcy decisions and coordinate Swiss proceedings with foreign proceedings facilitating the enforcement of foreign decisions.


The parties must be diligent during the entire legal proceedings in front of the foreign court to make sure that, at a later stage, there would not be any grounds for denial of recognition and enforcement.

The parties must specially bear in mind during the foreign proceedings that the breach of the right to be heard of a party is one of the most common grounds for challenge. To make sure the right to be heard is well respected, particularly given the serious stand of Switzerland regarding that question, the parties must carefully assess whether the opposing party was properly served. When service was transnational, they must also make sure that it was made in compliance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965, where applicable.

The recognition and enforcement of interim injunctions can give rise to various issues and are not always straightforward. Whilst it is debated whether they can be enforced under the PILA, interim injunctions clearly can be enforced under the LC. However, the enforcing of foreign interim injunctions might be more difficult than requesting such injunctions in Switzerland directly, pending the foreign outcome on the merits.

4 Enforcement


The enforcement methods available to the judgment creditor depend on the qualification of its claim, whether it is pecuniary or another type of claim. The former is governed by the DEBA and the latter by the CPC.

The common methods of the enforcement of a debt are:■ Ex parte attachment proceedings: this interim court remedy

allows distrain of the assets of the debtor in order to guar-antee payment of his debt. As it is an ex parte interim measure, it must be confirmed by commencing collection proceedings.

If the claim is due and unsecured, the creditor may request attachment if he can establish on a prima facie basis:■ the existence of his claim;■ the ground for attachment. It could be any of the

following:■ the debtor has no fixed domicile;■ the debtor deliberately evades his obligations,

removes his assets, leaves the country or intends to do so;

■ the debtor’s presence is only transient;■ the debtor has no residence in Switzerland; in

that case, if there is no other ground for attach-ment, the debt must have a sufficient link with Switzerland or it must be based on an acknowledg-ment of indebtedness;

■ the creditor has obtained a definitive or provi-sional certificate of loss against the debtor (insol-vency or bankruptcy); or

■ the creditor holds an enforceable judgment; and■ the existence of assets belonging to the debtor in

Switzerland. ■ Collection proceedings: the creditor may commence

collection proceedings to seize the debtor’s assets in order to enforce its debt or to validate an attachment order. Here are the standard steps of the collection proceedings:■ the creditor files a request with the Debt Collection

Office for the issuance of a Summons for Payment;■ Debt Collection issues and serves the Summons for

Payment upon the debtor;■ the debtor may oppose the Summons for Payment by

a written or oral declaration without being required to state any grounds in support of his opposition; and

■ in case of opposition, the creditor must apply to the competent court to have the debtor’s opposition lifted.

If the pecuniary claim stems from a foreign judgment, the creditor can start any of these proceedings in Switzerland and the court will have to assess, as a preliminary issue, whether such foreign judgment may be recognised and enforced in Switzerland. In other words, it is unnecessary to ask for recog-nition and enforcement as a prerequisite to the above-stated proceedings.

Enforcement of foreign judgments that are not subjected to the DEBA, i.e. judgments requiring specific performance, are governed by the CPC. The enforcement involves an obligation to do, to abstain or to tolerate (Art. 343 para. 1 CPC). Therefore, it needs a case-by-case analysis, and might even have become impossible, in which case the court must transform the specific performance into a pecuniary damage.

Common means available to the judgment creditor to enforce a specific performance are:


219


Bär & Karrer Ltd.

Saverio Lembo heads Bär & Karrer’s White Collar Crime practice group of the Geneva office.He has extensive experience in white-collar crime, commercial and financial litigation, international judicial assistance (civil and criminal), arbi-tration and insolvency. During recent years, he has been involved in a number of complex commercial litigation proceedings, has served as a party representative or arbitrator in various domestic and international commercial arbitrations and has assisted clients in Swiss and foreign criminal proceedings. He regularly represents clients before the Court of Arbitration for Sport (CAS).Saverio Lembo’s practice also extends to pharmaceutical litigation, inheritance law, employment matters and enforcement of foreign judg-ments and awards.

Bär & Karrer Ltd. 12, quai de la Poste, CH-1211Geneva 11Switzerland

Tel: +41 58 261 57 00Email: [email protected]: www.baerkarrer.ch

Bär & Karrer is a renowned Swiss law firm with more than 150 lawyers in Zurich, Geneva, Lugano and Zug.Our core business is advising our clients on innovative and complex trans-actions and representing them in litigation, arbitration and regulatory proceedings. Our clients range from multinational corporations to private individuals in Switzerland and around the world.Most of our work has an international component. We have broad experi-ence handling cross-border proceedings and transactions. Our extensive network consists of correspondent law firms which are all market leaders in their jurisdictions.Bär & Karrer was repeatedly awarded Switzerland Law Firm of the Year by the most important international legal ranking agencies in recent years.■ 2018 IFLR M&A Deal of the Year;■ 2018 Best in Trust & Estates by Euromoney LMG;■ 2018, 2017 Trophées du Droit Silver;■ 2016, 2015 and 2014 Mergermarket European M&A Awards;■ 2016, 2013 and 2012 Chambers Awards;

Aurélie Conrad Hari leads the civil litigation practice of Bär & Karrer in Geneva, where she has been a partner since 2017.Aurélie Conrad Hari has a broad experience in handling complex multi-jurisdictional disputes in financial, banking and commercial disputes. She also specialises in private clients’ assistance and representation in trust and estate matters.Her practice encompasses shareholders’ disputes, insolvency as well as asset recovery, with the recognition and enforcement of foreign judg-ments and arbitral awards. She also frequently acts as counsel representing parties in commercial arbitration related to various industries, e.g., sale, distribution, agency, construction (including power plant) and energy.Aurélie Conrad Hari regularly publishes and speaks in her fields of specialisation. She serves as president of the litigation commission of the International Association of Young Lawyers and leads the specialised forum on dispute resolution set up by the Geneva Bar Association in 2017.Who’s Who Legal lists her as a leading lawyer in asset recovery and as a future leader in arbitration. She is also recognised by Chambers and Partners, Leaders League, the Global Elite Private Client Directory as well as Citywealth where she was featured in the 2018 Future Leaders Top 100 and in the IFC Powerwomen Top 200.

Bär & Karrer Ltd.12, quai de la Poste, CH-1211Geneva 11Switzerland

Tel: +41 58 261 57 00Email: [email protected]: www.baerkarrer.ch

■ 2016, 2015 and 2014 The Legal 500 (“most recommended law firm in Switzerland”);

■ 2016 Trophées du Droit;■ 2015 and 2014 IFLR Awards;■ 2015, 2014, 2013, 2011 and 2010 The Lawyer European Awards;■ 2015 Citywealth Magic Circle Awards (“Law firm of the Year – EMEA”);

and■ 2014 Citywealth International Financial Centre Awards.

www.baerkarrer.ch


Chapter 37220

Tanzania

CRB Africa Legal Charles R.B. Rwechungura

Rugambwa Cyril Pesha

Tanzania


criminal proceedings, which is final and conclusive and vests a right or entitlement to claim for a specific sum of money into a judgment creditor against a judgment debtor resident or with assets in Tanzania.(i) It must be a liquidated money judgment arising from

civil or criminal proceedings but excluding matrimo-nial, probate and administration matters, bankruptcy and corporate insolvency.

(ii) It is made by the rightful claimant and does not contravene the provisions of the Act or the reciprocal treatment has not been withdrawn.

(iii) It was not obtained undefended due to failure to serve the judgment debtor timeously in the country of origin.

(iv) It was not obtained by fraud. (v) Enforcing it is not contrary to public policy.(vi) The subject matter is not res judicata.(vii) The judgment debtor was not under the rules of public

international law immune from legal process and did not submit to the jurisdiction of that court.

(viii) It must have been given by the original court within the last six years or by such appeal court where the judgment was appealed or such other time lawfully extended by the High Court.


It must be a judgment of a court of competent jurisdiction in a country for which the benefits under Part II of the Act have been extended. It must be in written form and sealed with the seal of the Superior Court and authenticated by a Notary Public or by affidavit.

In substance, it must deal with a subject matter permitted under the Act, be final and conclusive on the dispute adjudi-cated and must be for a specific sum of money.


The President of Tanzania must have extended the benefits of Part II of the Reciprocal Enforcement of Foreign Judgments Act to the country where the judgment has been made. It must be issued by a Superior Court in the country of equivalent rank to a High Court in Tanzania or an appellate court above the Superior Court. A certified copy of the judgment issued by the original Superior Court and authenticated by its seal must be presented; and in case the judgment is in a language other than English, an

1 Country Finder





1. Reciprocal Enforcement of Foreign Judgments Act, Cap 8

Botswana, Lesotho, Mauritius, New South Wales, Zambia, Seychelles, Somalia, Zimbabwe, Eswatini, UK and Sri Lanka

Question 3.1

2. Judgments Extension Act, Cap 7

Kenya, Uganda, Zanzibar and Malawi

Section 2

2 General Regime


In the absence of the Special Regimes created by the 2002 Revised Editions of the Reciprocal Enforcement of Foreign Judgments Act, Cap 8 and Judgments Extension Act, Cap 7, foreign judgments are enforceable by filing a fresh suit on the judgment in the jurisdiction where the judgment debtor resides. Specifically, we are excluding from the discussion international arbitral awards, which in accordance with the Arbitration Act, Cap 15 are capable of being sent directly by an Arbitrator to the High Court Registrar for filing, and once filed can be executed like a decree of the local court.


It is a judgment of a Superior Court equivalent in rank or status to the High Court in Tanzania of a foreign country to which reciprocal treatment has been extended, arising from civil or


221CRB Africa Legal


it arises from causes of action specifically excluded like matrimonial causes, administration of estates of deceased persons, bankruptcy, company insolvency, lunacy and guardianship of infants;

(v) where it is established that the court which entered the judgment in the country of origin lacked jurisdiction to determine the matter;

(vi) where it is established that there was a failure to serve summons on the judgment debtor within sufficient time to defend the suit;

(vii) where it is established that the judgment was obtained by fraud or such other illegality;

(viii) where it is established that the judgment was vested in some other rightful claimant; and

(ix) where it is established that enforcing the judgment would be contrary to public policy.

When can such a challenge be made?At the stage when the judgment debtor is applying to set aside the registration of the foreign judgment in the High Court; and at any other time during the process of execution, by way of objec-tion proceedings, if there is a pending appeal or if there is a plau-sible legally strong ground to justify a stay order. Such grounds would include reasons which due to change of circumstances or discovery of new facts could have adversely affected the registra-bility of the judgment or would have justified it being set aside. The reasons would be contained in the affidavit supporting the application of the judgment debtor to set aside the registration or by affidavit in any subsequent inter partes interlocutory application.


The legal framework for enforcing a foreign judgment is the same framework for enforcing local judgments except that the High Court Registry is enjoined to open a separate register for cases of enforcement of money judgments coming to the coun-try’s judicial system through the Act.

Beyond that, for any other specific subject matters not covered under the Reciprocal Act, the party claiming from a Tanzania resident judgment debtor is bound to file suit and upon obtaining judgment, the same machinery for enforcing civil justice contained in Order XXI titled EXECUTION OF DECREES AND ORDERS is used. Under Rule 12(2), every application for the execution of a decree must be in writing, signed and verified by the applicant or by some other person proved to the satisfac-tion of the court to be acquainted with the facts of the case, and must contain in a tabular form the following particulars, namely:(a) the number of the suit; (b) the names of the parties; (c) the date of the decree;(d) whether any appeal has been preferred from the decree;(e) whether any, and (if any) what, payment or other adjust-

ment of the matter in controversy has been made between the parties subsequently to the decree;

(f ) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) the amount with interest (if any) due upon the decree or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any) awarded;(i) the name of the person against whom execution of the

decree is sought; and

official translation of it certified by a Notary Public or certified by an affidavit must accompany the foreign judgment.


In practical terms, every foreign judgment made in a country to which the benefits of the Act have been extended by the President under Part II of the Act is a judgment recognised in Tanzania. The application for registration under Section 4 of the Act is done by affixing the original certified sealed and authenticated copy. For the enforcement process to commence, it must qualify for leave and be registered by the High Court of Tanzania. For that matter, the application for leave to file is deemed to constitute part of the recognition process. Refusal to register the foreign judgment terminates the enforcement process stillbirth as it were, and leave to register prequalifies the judgment for enforcement.


A judgment creditor intending to register the foreign judgment must make an ex parte Chamber Application in the High Court. The application must be supported by an affidavit with a certi-fied copy of the original judgment made in the foreign country annexed. The affidavit must also state the following, namely:(i) the entitlement of the judgment creditor to enforce the

judgment;(ii) the whole or part of the benefit remains unsatisfied;(iii) that the judgment is still valid and enforceable in the

country of origin;(iv) that the judgment is not liable to be set aside for reasons

stated in Section 6 of the Act including that it is a money judgment in personam and that it does not fall in causes of action specifically excluded like matrimonial causes, administration of estates of deceased persons, bankruptcy, company insolvency, lunacy and guardianship of infants;

(v) the court in the country of origin has jurisdiction;(vi) the process to obtain the judgment did not suffer from

a failure to serve summons within sufficient time for the judgment debtor to defend the suit;

(vii) the judgment was not obtained by fraud;(viii) the judgment was not vested in some other person; and(ix) the judgment is not contrary to public policy.


The following are some of the grounds under which enforce-ment can be challenged, namely:(i) where it is established that the applicant is not the rightful

claimant/judgment creditor to enforce the judgment;(ii) where it is established that the whole or part of the benefit

sought to be enforced has already been paid or other-wise satisfied but the payment or due satisfaction is not acknowledged by the applicant;

(iii) where it is established that the judgment sought to be enforced is no longer valid or enforceable in the country of origin;

(iv) where it is established that the judgment is liable to be set aside for reasons stated in Section 6 of the Act including grounds that it is not a money judgment in personam, or that


222 Tanzania


Courts in Tanzania have common law origin and endeavour to decide cases on the basis of law, precedents and equity. Where the foreign court has decided a case and in the process inter-preted local law, if the foreign court is from another common law background judicial system, then the decision is of persua-sive value; that is, the local court can take guidance from it as it deems fit, without any semblance of an obligation to do so. Through reciprocal enforcement, the benefits of the local machinery of justice are extended to citizens of a foreign country similarly extending local machinery to Tanzanian citi-zens. When a judgment creditor is applying to register a foreign judgment which interpreted local law, the High Court is obli-gated to register the judgment without entertaining any elements of sentimentality based on applying local law; notwithstanding that perhaps the said court might have decided the matter differ-ently. There is no room for the court to open up the merits of the case whether decided on the basis of local law or foreign law.


Tanzania is a United Republic of two parts; namely, main-land Tanzania and Zanzibar. The Act applies on mainland Tanzania where all regions have uniform enforcement judi-cial machinery beginning with the Primary Court, District/Resident Magistrates Court, the High Court and the Court of Appeal at the apex. The Reciprocal Enforcement of Foreign Judgments Act, Cap 8 applies on mainland Tanzania only and does not extend to Zanzibar. Though the Court of Appeal is at the apex of the court system in Zanzibar, judgments of courts in Zanzibar can be enforced on mainland Tanzania by way of the Judgment Extensions Act, Cap 7.


The limitation period prescribed by Section 4 of the Act is six years from the time the judgment was entered by the Superior Court in the country of origin or six years from the end of any appeal, review or revision litigation challenging the same.



1. The first regime is created under the Reciprocal Enforcement of Foreign Judgments Act, Cap 8, which is the more general law. The judgments enforced thereunder must be:(i) emanating from Superior Courts of countries for

which reciprocal enforcement has already been extended by the President; and

(ii) annexed with a certified copy of the original court which entered the judgment authenticated by that court’s seal or certified by a Notary Public or affidavit.

2 In substance:(i) it must not have been paid and discharged;

(j) the mode in which the assistance of the court is required, whether:(i) by the delivery of any property specifically decreed;(ii) by the attachment and sale, or by the sale without

attachment, of any property; (iii) by the arrest and detention in prison of any person;(iv) by the appointment of a receiver; or(v) otherwise, as the nature of the relief granted may

require.It is the same forms in execution proceedings under the rules of

the High Court in execution of a decree of the High Court which are, by virtue of Rule 12 of the Reciprocal Enforcement of Foreign Judgments Rules, prescribed to apply to and be used in proceed-ings in execution of a judgment registered under the Reciprocal Act with some amendments prescribed specifically like substituting the missing words of the phrases in any of such forms “decree of this court dated the … day of …”, or the like phrases, and “judgment of …” (describing the court in which the judgment was obtained) “dated the … day of ...”, such judgment having been duly registered in the High Court pursuant to Part II of the Reciprocal Enforcement of Foreign Judgments Act and other variations permitted to the extent and as the circumstances of each case may require.


A local judgment in conflict with a foreign judgment between the same parties presents a public policy predicament and therefore prevents the foreign judgment from meeting all the thresholds for registering a foreign judgment on reciprocity. Depending on what stage the existence of a contradictory judgment between the same parties is brought up, it potentially provides the High Court grounds to deny leave to register pending the judgment creditor taking lawful steps to set aside, reverse or nullify the local judg-ment. If the information is brought up or comes to the attention of the High Court through the affidavit accompanying the appli-cation to set aside the registration of the foreign judgment, that could suffice, other matters being equal, to set aside registration of the foreign judgment or would dictate a stay of the decision to enforce until the judgment creditor has removed the conflict through appeal, review or revision in the appropriate court.


A conflicting local law would present another public policy dilemma and would work in favour of the judgment debtor. The judgment debtor would invariably be expected to raise the conflict and to try to argue it in his favour. A conflicting deci-sion between different parties, on the other hand, would not have any negative effect or impact on the enforcement unless it is raised as one of the grounds for setting aside the foreign judgment on legal grounds as a precedent. Otherwise, the deci-sion would be irrelevant to the process in the High Court in its Reciprocal Enforcement of Foreign Judgments jurisdiction.



223CRB Africa Legal


What the court does is to ascertain that the judgment is from a beneficiary country and meets the legal prerequisites for regis-tering the judgment in Tanzania. Judicial authorities in Tanzania are ipso facto compelled to recognise appropriately certified copies of judgments of the Superior Court of such country, if they meet prescribed legal thresholds and survive the likely challenges to registration by the judgment debtor. Enforcement, on the other hand, is a judicial debt recovery process of executing post-rec-ognition the judgment of the foreign courts which places the foreign judgment on par with execution of judgments of local courts in the recovery of money judgments as permitted by the Act.

With regard to the Judgments Extension Act regime, recog-nition of neighbouring countries is assumed and the respective judiciaries operate collaboratively without any express interfer-ence of the different administrative political systems.


(1) The judgment creditor can (by ex parte Chamber Summons supported by an affidavit annexed stating the full names, titles, trade, place of abode and addresses of the judgment creditor and judgment debtor with, among other things, a certified copy of the judgment of the foreign court of the rank equivalent to the High Court of Tanzania in a country to which the benefits from Part II of the Reciprocal Enforcement of Foreign Judgment Act has been extended by the President, and meeting the following:

(i) it is a money judgment in personam;(ii) it is final and conclusive on the facts constituting the

dispute; (iii) it is passed within six years of the date of application

for registration of the judgment in the High Court of Tanzania; or if it was appealed, within six years of the disposal of such appeal;

(iv) it has not been paid and satisfied or has been paid partially;

(v) it remains valid and capable of enforcement in the courts of the country of origin;

(vi) it contains interest accruing on the judgment debt from the date of judgment to the date of application in the Tanzanian court in accordance with the law and practice in the country of origin;

(vii) it contains costs for obtaining the judgment and it is certified, sealed and translated into English and notarised or certified by an affidavit; and

(viii) conversion into Tanzania shillings of the judgment debt at the official exchange rate ruling on the date on which the judgment was entered)

apply for leave to register the judgment of the foreign court in the High Court.

(2) Upon grant of leave, an order may be drawn and should include specifically the period within which the judgment debtor may set it aside. The order so drawn is attached to the Notice of Registration and served on the judgment debtor, and the affidavit of service must be made and filed in court within three days. The Notice of Registration served on the judgment debtor must state explicitly the name, address and particulars of the judgment debtor and must inform such debtor of the right to set aside and must contain explicitly the period ordered by the court whereby the judgment debtor is permitted to apply to set aside the leave to file.

(ii) the applicant must be able to affirm entitlement to enforce it;

(iii) it must remain valid and enforceable in the country of origin;

(iv) time for setting aside specified in the registration order must have expired; and

(v) the amount of court interest rate accrued on the debt in accordance with law in the country of origin up to date of filing must be specified.

3. The second regime is created by the Judgments Extension Act, Cap 7, of the Laws of Tanzania which extended, trans-ferred and vested into the High Court of Tanzania and courts subordinate thereto power to enforce judgments originating from four contiguous jurisdictions of Kenya, Malawi, Uganda and Zanzibar under the provisions of the Civil Procedure Code of Tanzania to the same manner and extent as decrees of the High Court of Tanzania or courts subordinate thereto. In this second regime, there are stark differences from the Reciprocal Act one, including the following: (i) There are no requirements for preliminary registration

steps nor other formalities.(ii) There is no restriction on rank of the court which

issued the judgment.(iii) The decree may relate to “any debt, damage or costs”

and the target for execution can be “upon the person or property of the defendant in mainland Tanzania” implying that the scope or range of assets targeted can arise from causes of action relating to matrimo-nial matters, estates and such other debt howsoever arising, provided it is for a specific money amount.

(iv) All Judges and Magistrates are permitted to endorse and execute a warrant for arrest of a defendant in a civil case, whether before judgment or after, even by telegraphic means, to be confirmed subsequently within reasonable time. The court can issue a provi-sional warrant for the arrest of the judgment debtor pending receipt of the original warrant, which means that it is targeting a delinquent judgment debtor’s intent on defeating the course of justice by slipping across the border.

(v) Where the court lacks adequate evidence of a deposit or other means to demonstrate availability of sufficient resources to cover all the costs, charges and expenses by the judgment creditor or where the original warrant does not arrive within reasonable time of issuing a provisional arrest order being made, the judgment debtor will be released.

In view of technological developments made in terms of the internet and telecommunications and other communication means since the Act was enacted in the 1930s, it is fair to inter-pret telegraphic means to stand for facsimile or scanned copies as well in order to appreciate the full extent of advantages avail-able under the Judgments Extensions Act, Cap 7, notwith-standing the change from one colonial authority, which was in power when the Act was made, to currently, with a different sovereign government in charge.


In our understanding, recognition is a political act following conferment of benefits under Part II of the Act by the President.


224 Tanzania


5 Other Matters


Based on enquiries with various court registries, there has not been any decided case pronouncing any departure from the status narrated hereinabove in the last one year.


In the Reciprocal Enforcement Regime, the service of Notice of Registration on the judgment debtor must be returned and filed in court and the affidavit of service made within a specific duration of three days after service. It is critical that the dead-line is prescribed lest it forms a ground to set aside the registra-tion. With regard to the Judgments Extension Regime, the ease with which executions can be enforced is a wonderful opportu-nity for residents of border districts and regions.


The answer to this question is identical to the answer to ques-tion 2.7 above.

4 Enforcement


If the foreign judgment to be enforced is a money decree, it can be enforced by:(i) detention of the judgment debtor as a civil prisoner;(ii) attachment of properties of moveable or immoveable

properties of the judgment debtor; and(iii) seizure of the asset if it is money.


225CRB Africa Legal


Rugambwa Cyril Pesha, a graduate of the University of Dar es Salaam (1976) with postgraduate qualifications from Amsterdam University (1984), is a seasoned litigator having practised for eight years as a Corporation Counsel with a large state-owned firm, the Tanzania Legal Corporation, before working as in-house counsel for two financial institutions, initially with Tanganyika Development Finance Limited and later with the East African Development Bank for a continuous spell of 21 years, handling both local and international lending and borrowing transactions and teaming up with the best law firms in East Africa in conducting litigations and gathering diverse litigation, debt recovery and arbitration experience. He is the Litigation Partner in the firm, is on the Panel of Arbitrators of the Tanzania Institute of Arbitrators and has participated as Arbitrator or Counsel in several local and international arbitrations, and keeps a close eye on cross-border enforcement of judgments and arbitral awards.

CRB Africa Legal5th Floor, Tanzanite Park Plot No 38| South Ursino|Victoria Area New Bagamoyo RoadPO Box 79958 | Dar es SalaamTanzania

Tel: +255 754 312 851 / +255 292 3562 +255 292 3563Email: [email protected]: www.crbafricalegal.com

CRB Africa Legal is a leading corporate and commercial law firm based in Tanzania. Our team of lawyers frequently advise on complex inbound and outbound cross-border transactions for both multi-national and local corporates and investors doing business in the region. As corporate practitioners, we advise clients and provide services across various practice areas in the fields of Corporate Law, Mergers & Acquisitions, Corporate Litigation and Insolvency Law, Restructuring, Conveyance, Tax Compliance, Finance and Banking. Our extensive experience in handling high-profile transactions ensures that we are able to act meticulously and promptly every time. CRB values long-term relationships and focuses on understanding the nature of clients’ businesses and goals so as to effectively partake in their growth and development whilst providing quality legal advice.

www.crbafricalegal.com

Charles R.B. Rwechungura graduated with a Bachelor of Laws (LL.B.) Hons from the University of Dar es Salaam – Tanzania in 1977. Majored in: the Law of Business Organisations (Corporate Law); the Law of Banking & Insurance (Commercial Law); and Legal Aspects of International Trade & Investments. Completed the following courses: Development Lawyers Course (International Development Law Institute – Rome/Italy); Investment Treaties, Investment Contracts and Joint Ventures (International Development Law Institute, Rome/Italy); Legal Aspects of Reform Management and Divesture of State Owned Enterprises (International Development Law Institute, Rome/Italy); Legal Aspects of Debt Management (United Nations Institute for Training and Research, Nairobi); and Capital Markets: Development & Regulation (International Law Institute, Washington). Member of the following professional societies: Tanganyika Law Society; East African Law Society; International Bar Association; SADC Lawyers Association; Pan African Lawyers Union (PALU); and Commonwealth Bar Association.

CRB Africa Legal5th Floor, Tanzanite Park Plot No 38| South Ursino|Victoria Area New Bagamoyo RoadPO Box 79958 | Dar es SalaamTanzania

Tel: +255 754 312 851 / +255 292 3562 +255 292 3563Email: [email protected]: www.crbafricalegal.com



Chapter 38226

Turkey

ESENYEL & PARTNERS LAWYERS AND CONSULTANTS Selcuk Esenyel

Turkey

2 General Regime


The main legislation that regulates the enforcement and recognition of foreign judgments is the Code on the Private International and Procedural Law numbered 5718 (“PIL”).

There are further legislations concerning specific areas.


A judgment is a decision of the foreign court relating to civil matters and is final in accordance with the laws of that country.

No further right to appeal must be available for the case in the foreign courts.


The enforcement and recognition of the foreign judgment and arbitral award could be done by the competent court if: a) The subject of the foreign judgment is binding and final

according to the law of the country where the decision was rendered.

b) The subject matter of the judgment is out of the scope of the Turkish courts’ exclusive jurisdiction.

c) The decision does not contradict the Turkish public order.As a general rule, the courts examine whether the above

preconditions are met ex officio.


A connection to the Turkish courts is not required for the Turkish courts to accept jurisdiction of a foreign judgment. Therefore, according to Turkish procedural law rules, a party who applies to the court should have an interest to obtain such decision.

Accordingly, even though a connection is not needed, the party that would obtain the recognition and enforcement of the foreign judgment should have an interest on the recognition or need to enforce the foreign judgment within the competence of the Turkish courts.

1 Country Finder





New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.


Section 3.

Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (“CMR”).


Section 3.

The Hague Convention on Civil Procedure of 1 March 1954.


Section 3.

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of 18 March 1965 (“Washington Convention”).


Section 3.

Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions.


Section 3.


227ESENYEL & PARTNERS LAWYERS AND CONSULTANTS


■ the foreign judgment has already been wholly or partially executed; or

■ there is a ground preventing the enforcement of the foreign judgment.

When a foreign judgment is before the Turkish court for the recognition and/or enforcement, the Turkish court may only review whether the necessary conditions of recognition and/or enforcement of a foreign judgment have been satisfied. In other words, it is not possible for the Turkish court to review the substance of the foreign judgment; to examine whether or not the foreign judgment has been given in accordance with the applicable jurisdiction.

A case will need to be brought to the court’s attention within the time limit permitted by the country giving the judgment. The defendant can appeal the decision on the basis that the time limit has elapsed.


In some instances, not all foreign judgments are required to be executed in the Turkish courts. For example, those relating to divorce proceedings, annulment of marriage or denial of a child by the parent only require recognition by the Turkish courts to have a legal effect under Turkish law.

In some instances, for a judgment or an official document to have a legal effect, they must satisfy the requirements of recogni-tion and enforcement in the Turkish courts. This is applicable to any foreign judgment relating to the adoption of a child.

If a judgment has been given by an international court such as the International Court of Justice under PIL, these judgments cannot be recognised or enforced in the Turkish courts.


(a) As a condition for bringing all kinds of proceedings whether regarding a foreign judgment or not before the Turkish courts; there should not be a previous binding judgment between the parties on the same issue.

(b) A foreign judgment cannot be recognised or enforced if there is a local pending proceeding between the parties on the same issue.


PIL does not regulate the enforcement of foreign judgments when there is a conflicting local law or prior judgment of the same issue.

However, the existence of a prior judgment or conflicting local law may be a motif for the court on the recognition and/or enforcement of foreign judgments on the basis of public order.


One of the preconditions of the recognition and/or enforcement


In the recognition of foreign judgments, a mutual agreement between the two concerned countries is not required. Whereas, with the enforcement of a foreign judgment, there must be an agreement, a legal provision, or a de facto application between Turkey and the concerned foreign country.

The routes for obtaining judicial recognition and enforcement are very similar. The recognition of a foreign judgment does not enable it to be enforced in the Turkish courts. It is merely an acknowledgment that it has the same power as a final judg-ment of the local courts and provides conclusive evidence and decision.

Once an enforcement of a foreign judgment decision has been obtained before the Turkish courts; it can be executed.


It is possible for a foreign judgment to be recognised and enforced as long as the requirements of PIL are satisfied.

Any real person or legal entity that has a right to enforce a legal action can file a request for the recognition and/or enforce-ment of the foreign judgment before the Turkish courts.

A petition is filed at the court and should include the following:(a) the full names of all the parties, addresses and details of

their legal representatives (if any);(b) the name of the court which gave the decision along with

the date, number and the summary of the judgment; and(c) (even if only) part of a foreign judgment is to be enforced,

that particular part must then be stated.The enforcement petition must include the below which

must be apostilled or certified by the Turkish Consulate in the country concerned:(a) an approved judgment of the foreign court or the certified

copy of the approved judgment along with the authorised translation of the judgment; and

(b) a letter confirming that it is a final judgment of the foreign court along with the authorised translation of it.

The petition must be served to the defendant along with the date of the hearing.

The claimant must make an application to the court at the domicile place of the defendant. If the defendant is a legal entity, the case should be filed at the registration place of the headquarters of the legal entity. If the defendant does not have a residence address in Turkey, the proceeding can be commenced in any district court in Istanbul, Ankara or Izmir.

Furthermore, a foreign claimant shall be obliged to submit a warranty before the court for obtaining a recognition and/or enforcement judgment. This amount is determined by the court and may be subject to exemptions due to a mutual agreement between Turkey and the concerned country.

If the specific regimes are applicable for the enforcement of foreign judgments, these rules must be followed.


The defendant may challenge a foreign judgment on the basis that:■ the foreign judgment is rendered by the court as unrelated

to the matter in dispute;


228 Turkey



1. When a judgment is enforceable in a country giving the decision, it can also be enforceable in a State Party to the Convention as long as the formalities described in part two have been complied with. It must relate to proceedings out of carriage as provided under the Convention.

CMR does not permit the merits of the case to be reopened in the country where a judgment is being enforced.

The judgments applicable under this convention are judg-ments after trial, judgment by default and settlements confirmed by an order of the court.

2. Pursuant to the provisions of the Convention, once the judgment has been enforced in the State giving the deci-sion, such judgment will be enforceable in the Turkish courts as long as it satisfies the requirements under the domestic law.

3. For a foreign judgment to be recognised and enforced the party applying must supply:(a) a duly authenticated original award or a duly certified

copy; and(b) an original agreement or a duly certified copy.

If the award or agreement is not in Turkish, the party applying for recognition or enforcement of the award needs to produce a Turkish translation of these documents and this must be certified by an official translator or a diplomatic or consular agent.

4. An order for costs and expenses will be enforceable without a hearing in any other Contracting State; the competent authority in Turkey will examine:(a) the law of the country in which the judgment is being

rendered (the copy of the judgment must be authentic);(b) if the decision has the force of res judicata; and(c) the translation is provided, which is certified as correct

by a diplomatic officer or a consular agent.5. Each of the Contracting States will recognise an award

rendered pursuant to the Convention as binding and enforceable within its territories as if it was a final judg-ment of a court in that State. The party seeking recogni-tion or enforcement of the award needs to provide a copy of the award certified by the Secretary-General.

For the Washington Convention, no exequatur will be necessary and, therefore, enforcement proceedings according to the procedural law applicable to the member state where the enforcement is made could commence automatically.


1. Enforcement of a judgment under CMR may be chal-lenged on the basis that it relates to interim judgments or award of damages or cost orders made against a plaintiff who has failed in his action.

2. Enforcement of a judgment under this Convention may be challenged on the grounds that:(a) it is provisionally enforceable;(b) it relates to award of damages; or(c) it is a cost order made against a plaintiff who fails in

his action in the State giving the original judgment. The merits of the case relating to this Convention cannot

be reviewed by the Turkish courts.

of a foreign judgment is that the subject matter of the judgment is out of the scope of the Turkish courts’ exclusive jurisdiction.

Therefore, if the subject matter of the foreign judgment purports the application of Turkish law; the Turkish court would not give a recognition and/or enforcement decision on the judgment.


The law relating to enforcement and recognition of foreign judg-ments does not vary between different regions in Turkey.


There is no specific limitation period for the enforcement of foreign judgments under Turkish legislation. However, according to Article 8 of PIL, the limitation period should be subjected to the applicable law of the legal transaction and/or relation.



1. Under Article 31(3) of CMR, a judgment of a contracting country will be recognised by the other Contracting States as soon as the formalities in that country concerned have been complied with.

2. When a judgment has become enforceable under the law applied by the court of the State, the judgment can be enforced in the Turkish courts once the requirements under PIL have been satisfied as provided under Article 12 of the Convention.

3. This Convention will apply to the recognising and enforcing of an arbitral award made in the territory of a State other than Turkey where the recognition and enforce-ment of such award is sought.

4. Article 19 of The Hague Convention provides that an order for costs and expenses can be rendered enforceable without a hearing in accordance with the Turkish legisla-tion of which enforcement is sought. This is subject to a subsequent appeal by the losing party.

5. The Washington Convention applies to arbitral awards issued by the International Centre for Settlement of Investment Disputes (“ICSID”) for disputes relating to an investment between a signatory State and a national of another signatory State.


The New York Convention states that once a foreign judgment has been recognised, it should have the same effect of a local court judgment. Whereas, the enforcement of a foreign judg-ment permits it to be executed in the Turkish courts.


229ESENYEL & PARTNERS LAWYERS AND CONSULTANTS


5 Other Matters


There have not been any recent legal developments regarding the recognition and enforcement of foreign judgments. The relevant legislation, PIL, has been applied for some time now. This is important for international relations and the recognition of foreign judgments in Turkey.

We are at a period where a lot of disputes or matters between parties have an international element. Therefore, PIL is impor-tant and is a modern legislation which is not in need of urgent reform.

The development in this area is usually dependent on the subject matter of the case. If there is a total disregard of Turkish law in the country concerned, it would be typical for the Turkish courts to reject such foreign judgment.


The timescale should be taken into consideration. It is not a quick process and different timescales might be applicable for the enforcement and appeal stages. The enforcement procedure might take around eight to 12 months and the appeal procedure is likely to take a further six to eight months.

The procedure should be followed carefully as a right to appeal may be available to the party in default in the country giving the decision.

There is no specific treatment to different countries under Turkish law. For example, it does not matter whether the foreign judgment was given in the English courts or the courts of Panama.

As long as the preconditions and requirements under Turkish law are fully satisfied, the foreign judgment would be recognised and enforced by the Turkish courts.

Due to the variety of regimes available as discussed above, it might be essential that clients who wish to enforce foreign judg-ments in Turkey consider if any of the regimes would be appli-cable to determine the procedural route to be taken to enforce a judgment.

3. Recognition and enforcement of foreign arbitral awards under the Convention may be challenged on the grounds that:(a) the agreement is not valid;(b) a proper notice of arbitral proceedings was not given

to the party against whom the award is invoked;(c) it falls outside of the arbitration agreement;(d) the arbitral procedure is not in accordance with the

agreement of the parties or was not in accordance with the law of the country where the arbitration took place;

(e) the award is not yet binding on the parties, or has been set aside or suspended; or

(f ) the subject matter of the difference is not capable of settlement by arbitration under Turkish law.

4. An order will be challenged under this Convention if it does not relate to orders for costs and expenses.

5. An award can be challenged if the requirements are not fulfilled.

4 Enforcement


There are two main enforcement methods in Turkey: execution proceedings; and bankruptcy proceedings.

An ordinary execution proceeding may be commenced against the debtors in Turkey. In order to do so, a payment order shall be prepared and served on the debtor via the Bailiff Office. Once the payment orders are served, the debtor is enti-tled to object to the payment order within seven days as of the service of the same. If the debtor fails to object to the payment order within the allowed period of time, the payment order shall become final and binding and any asset of the debtor including the bank accounts, movables and real estates may be seized and sold through auction. If the debtor raises objection to the payment order, the substantive proceedings shall be commenced for the cancellation of objections which is likely to take approx-imately 12 months of litigation.

Bankruptcy proceedings only apply to merchants in relation to their unpaid and due debts. The process is initiated by the creditor making a demand to the Bailiff Office in the debtor’s principal place of business as registered at the trade registry. Once the demand is made, a payment order will be served on the debtor. If the debtor pays the debt within seven days of receiving the payment order the bankruptcy proceedings will be finalised.


230

Selcuk Esenyel is the founding partner of ESENYEL & PARTNERS LAWYERS AND CONSULTANTS and is a qualified lawyer admitted to the Istanbul Bar Association after completing his LL.B. Law degree in Turkey and studying an LL.M. in the United Kingdom. He primarily focuses on maritime, admiralty, dispute resolution, banking and finance and asset finance and securitisation. He has acted for a wide range of clien-tele, from P&I Clubs to H&M insurers, to international banks to ship charterers and owners. He is currently in charge of the Shipping, Finance and Litigation team at ESENYEL & PARTNERS LAWYERS AND CONSULTANTS.

ESENYEL & PARTNERS LAWYERS AND CONSULTANTSiTower, Merkez Mah. Akar Cad. No.3 K.19 D.135 Bomonti Sisli, Istanbul Turkey

Tel: +90 212 397 1991Email: [email protected]: www.esenyelpartners.com

ESENYEL & PARTNERS LAWYERS AND CONSULTANTS owes its ongoing growth to its reputation for providing swift, practical and high-quality service to its clients.The highly trained and capable lawyers of ESENYEL & PARTNERS LAWYERS AND CONSULTANTS take a hands-on approach to the practice of law and provide both legal and technical assistance by virtue of their dedication to understanding the clients they represent, and their expertise in the specific sectors in which they work. The firm observes the highest ethical and professional standards, combined with its rich depth of understanding of the law, to help it deliver better and more innovative solutions for clients. We consistently develop and expand our depth for the prosperity of our clients. Our solution-driven approach combines excellence of legal assis-tance with commercial awareness.ESENYEL & PARTNERS LAWYERS AND CONSULTANTS counsel the world’s leading companies in every area of the law, including international and domestic corporate and financial matters, corporate governance, international arbitration, technology, intellectual property, business litiga-tion, appellate matters, white-collar criminal defence, federal and state


Turkey

legislative matters, energy and oil and gas matters, real estate, administra-tive, regulatory matters, shipping and transport, insurance, environmental and international trade.Lawyers at ESENYEL & PARTNERS LAWYERS AND CONSULTANTS are qualified and experienced, working in an internationally challenging envi-ronment. The firm owes its success to its devotion to handling matters by avoiding unnecessary litigation for its clients by adopting a customer-cen-tric approach. The aim of the firm is to reach the most advantageous result for its clients through tailor-made solutions.

www.esenyelpartners.com



Chapter 39 231

USA

Williams & Connolly LLP Ana C. Reyes

John J. Buckley, Jr.

USA

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 (West 2019) (“This chapter does not prevent the recognition under principles of comity or otherwise of a foreign-country 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 judgments, Hilton v. Guyot, 159 U.S. 113 (1895). In Hilton, the Supreme Court held that the recognition and enforcement of foreign judgments is primarily based on principles of interna-tional comity. Accordingly, “where there has been opportunity for a full and fair trial abroad before a court of competent juris-diction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administra-tion of justice”, the merits of the case “should not, in an action brought in this country upon the judgment, be tried afresh”. Id. at 202–03.

While state courts are courts of general jurisdiction, and are presumed to have subject matter jurisdiction over a case, the constitutional limitations on federal jurisdiction make federal courts “courts of limited jurisdiction”. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal courts hear recog-nition and enforcement actions under either diversity of citizen-ship jurisdiction, or federal question jurisdiction, with diversity of citizenship jurisdiction being the most commonly invoked jurisdictional ground. The diversity statute, 28 U.S.C. § 1332, provides that district courts have jurisdiction over all civil actions where the matter in controversy exceeds $75,000 and the parties are diverse.

In diversity cases, federal courts apply the recognition and enforcement rules of the state in which the federal court sits. Ohno v. Yasuma, 723 F.3d 984, 990 (9th Cir. 2013). This means that removal of an enforcement action from state to federal court will ordinarily result in the federal court’s application of the same state statute that would have been applied in state court proceedings. Additionally, Rule 64 of the Federal Rules of Civil Procedure requires a federal court to apply state law for reme-dies involving the seizure of property, which may be essential in an action seeking to collect on a foreign money judgment in a U.S. court.

When a federal court’s subject matter jurisdiction is based on a question of federal law, rather than diversity grounds, the courts apply the applicable federal statute (if there is one) or federal common law. For example, the U.S. has acceded to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517 (“New York Convention”) and implemented its provisions in Chapter 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 201–208.

1 Country Finder





Common Law. All countries. Sections 2, 4, and 5.

Uniform Foreign Money Judgments Recognition Act (1962).

All countries (adopted by a majority of U.S. states).

Sections 2, 4, and 5.

Uniform Foreign-Country Money Judgments Recognition Act (2005).

All countries (adopted by a minority of U.S. states).

Sections 2, 4, and 5.

2 General Regime


The United States does not have a uniform federal law governing the recognition and enforcement of foreign judgments. Moreover, it is not a party to any treaty that deals with this subject. Accordingly, the recognition and subsequent enforce-ment of foreign judgments in the United States is primarily a matter of state statutory and common law.

The statutory law of the states derives from two model recognition acts promulgated by the National Conference of Commissioners on Uniform State Laws: the 1962 Uniform Money-Judgments Recognition Act; and the 2005 Uniform Foreign-Country Money Judgments Recognition Act. The majority of states and the District of Columbia have adopted some version of these model laws. New York, for example, has enacted the New York Uniform Foreign Money-Judgments Recognition Act, codified in Article 53 of New York’s Civil Practice Law and Rules (“CPLR”). These statutes apply only to judgments that grant or deny recovery of a sum of money.

States without a recognition act rely on the common law, influenced by the Restatement (Third) of Foreign Relations Law


232 USA


expedited summary judgment action pursuant to CPLR § 3213, which is in lieu of a complaint; or (3) filing a counterclaim or cross-claim or asserting an affirmative defence in a current proceeding. See generally CPLR § 5303. The summary procedure is favoured; CPLR § 3213 provides that “[w]hen an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint”. See Sea Trade Mar. Corp. v. Coutsodontis, 978 N.Y.S.2d 115, 117–18 (App. Div. 2013).

The holder of a foreign country judgment seeking summary relief under § 3213 must have the foreign judgment authenticated in accordance with an act of Congress or the statutes of New York, and filed within 90 days of the date of authentication. In addi-tion: (1) when the judgment was rendered in a foreign language the holder must provide a certified English translation; (2) unless obvious from the face of the judgment, the holder must submit the affidavit of an expert in the law of the jurisdiction that rendered the judgment establishing that the judgment is final, conclusive and enforceable in that jurisdiction; (3) if the expert’s affidavit is in a foreign language, there must be a certified English translation; and (4) if the expert cites a particular foreign law authority, the translator must provide the court with copies of those authorities and trans-lated copies. See Sea Trade, supra; John R. Higgitt, Supplementary Practice Commentaries, CPLR § 3213, at 704–05 (Supp. 2019).


The court must have subject matter jurisdiction (of particular importance in federal court) and in most states there must also be personal jurisdiction, i.e., the non-resident judgment debtor must have “minimum contacts” with the state to satisfy due process. See Daimler AG v. Bauman, 571 U.S. 117 (2014); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

State personal jurisdiction law varies, and courts disagree about the due process requirements in recognition actions. In New York, the situation is particularly muddled. New York state courts have, in the past, opined that a foreign money judgment is enforceable under CPLR Article 53, whether or not the defendant has contacts with the state, or currently has assets within the state against which a judgment could be enforced. In Lenchyshyn v. Pelko Electric, Inc., 723 N.Y.S. 2d 285, 291 (App. Div. 2001), the Fourth Department reasoned that, in an Article 53 proceeding, “the judg-ment creditor does not seek any new relief against the judgment debtor, but instead merely asks the court to perform its ministe-rial function of recognising the foreign country money judgment”. Accordingly, the court held that jurisdiction over the judgment debtor or its property was not a prerequisite to suit. Accord: Abu Dhabi Commercial Bank PJSC v. Saad Trading, Contr. & Fin. Servs. Co., 1986 N.Y.S. 2d 454 (App. Div. 2014). However, in AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A., 73 N.Y.S. 3d 1 (App. Div. 2018), the First Department issued a conflicting decision, restricting Lenchyshyn to cases where the judgment debtor “does not contend that substan-tive grounds exist to deny recognition to the foreign judgment”. Id. at 10. Therefore, “[o]nly when a judgment debtor opposing recog-nition of a foreign country judgment asserts substantive statutory grounds for denying recognition, must there be either in personam or in rem jurisdiction in New York”. Diaz v. Galopy Corp. Int’l, N.V., 79 N.Y.S.3d 494, 498 (Sup. Ct. N.Y. Cty. 2018).

Once converted into a state judgment, a foreign judgment is generally given full faith and credit under Article IV, Section 1 of the U.S. Constitution, and is therefore enforceable as a domestic judgment in any U.S. court. See, e.g., CPLR § 5303; Fla. Stat. Ann. § 55.604(5); Cal. Civ. Proc. Code § 1719.

Section 203 provides that an action or proceeding falling under the New York Convention “shall be deemed to arise under the laws and treaties of the United States”, and the district courts of the United States “shall have original jurisdiction over such an action”. 9 U.S.C. § 203.


State statutes based on the Model Acts require that a judgment: grant or deny recovery of a sum of money; be final and conclu-sive between the parties; and be enforceable in the country in which the judgment was entered. See 2005 Recognition Act § 3(a) (2); 1962 Recognition Act § 3; Cal. Civ. Proc. Code § 1715(a)–(b) (West 2019). The finality requirement means that interme-diate and interlocutory rulings cannot be recognised.

Judgments for taxes, fines or other penalties are excluded from the recognition statutes. Additionally, under the 1962 Recognition Act, courts will not recognise and enforce judg-ments “[in] support [of] matrimonial or family matters”. 1962 Recognition Act § 1(2). The 2005 Recognition Act expanded this exclusion to cover judgments “for divorce, support, or mainte-nance, or other judgments rendered in connection with domestic relations”. 2005 Recognition Act § 3(b)(3). However, non-mon-etary judgments, including matrimonial matters, may be recog-nised under principles of comity, or pursuant to specific statute law. See, e.g., Cal. Civ. Proc. Code § 1715(b)(3)(B) (providing that a judgment in connection with domestic relations may be recog-nised under a savings clause); Downs v. Yuen, 748 N.Y.S. 2d 131 (App. Div. 2002) (the New York recognition statute does not bar recognition of a foreign support judgment as a matter of comity). The Restatement (Third) of Foreign Relations Law § 481(1) has a broader scope than the Model Acts, and would recognise foreign judgments “establishing or confirming the status of a person, or determining interests in property”.

Section 2, cmt. 3 of the 2005 Recognition Act provides that a foreign country judgment “need not take a particular form”, and that “any competent government tribunal that issues such a ‘judg-ment’ comes within the term ‘Court’ for purposes of this Act”. However, the judgment must be from an adjudicative body of the foreign country “and not the result of an alternative dispute mech-anism chosen by the parties”. Foreign arbitral awards, therefore, are not covered by the Act, but are instead governed by federal law. On the other hand, a judgment of a foreign court confirming or setting aside an arbitral award is covered by the Act.


For the substantive requirements of a judgment, see supra, ques-tion 2.2.

To have a judgment recognised, Section 6 of the 2005 Recognition Act requires that the judgment holder file a court action against the debtor. This means that the holder may bring a plenary action or raise the matter as a counterclaim, cross-claim or affirmative defence in a pending proceeding. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 36A.006 (West 2019) (recognition can be sought as an original matter by filing an action seeking recog-nition, or may be raised in a pending action by counterclaim, cross-claim or affirmative defence); Cal. Civ. Proc. Code § 1718(b) (same); D.C. Code Ann. § 15-366(b) (West 2019) (same).

In New York, and several other jurisdictions, the holder of the judgment has several options: (1) a plenary action (which is often an attachment action pursuant to CPLR § 6201(5)); (2) an


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of a foreign-country judgment is sought in a pending action, the issue of recognition may be raised by counterclaim, cross-claim, or affirmative defense”. Id. § 4809(b). Once recognised, the foreign-country judgment is: “(1) [c]onclusive between the parties to the same extent as the judgment of a sister state enti-tled to full faith and credit in this State would be conclusive; and (2) [e]nforceable in the same manner and to the same extent as a judgment rendered in this State.” Id. § 4810.

In all jurisdictions, if a party establishes that an appeal from a foreign-country judgment is pending, or will be taken, the court “may stay any proceedings with regard to the foreign country judgment until: (1) the appeal is concluded; (2) the time for appeal expires; or (3) the appellant has had sufficient time to prosecute the appeal and has failed to do so”. See Tex. Civ. Prac. & Rem. Code Ann. § 36A.008; Cal. Civ. Proc. Code § 1720; PJSC Credit-Moscow Bank v. Khairoulline, No. CV 15-6604, 2016 WL 4454208 (E.D. Pa. Aug. 24, 2016) (issuing stay pending resolu-tion of appeals).


A judgment debtor cannot file a challenge unless the judg-ment creditor has brought a recognition/enforcement action. Chevron Corp. v. Naranjo, 667 F.3d 232, 240 (2d Cir. 2012) (“The Recognition Act nowhere authorizes a court to declare a foreign judgment unenforceable on the preemptive suit of a putative judgment-debtor”). Accord: Jill Stuart Asia LLC v. LG Fashion Corp., No. 18-CV-3786 (VSB), 2019 WL 4450631, at *3 (S.D.N.Y. Sept. 17, 2019).

All states recognise both mandatory and discretionary grounds for non-recognition. These grounds, usually based on state statutory law, can be asserted as affirmative defences in an action on the judgment, or by counterclaim or cross-claim in a pending proceeding between the parties.

New York law, for example, provides two mandatory grounds for non-recognition: (1) the judgment was “rendered under a system which does not provide impartial tribunals or proce-dures compatible with the requirements of due process of law”; or (2) “the foreign court did not have personal jurisdiction over the defendant”. CPLR § 5304. (However, under CPLR § 5303, a defendant waives personal jurisdiction by voluntarily appearing in the foreign court proceeding for purposes other than contesting jurisdiction.)

New York law also provides eight discretionary grounds pursuant to which a New York court “need not” recognise a judg-ment. CPLR § 5304(b). These discretionary grounds include: (1) lack of subject matter jurisdiction; (2) failure to receive notice of the proceedings in the foreign court in sufficient time to allow for defences; (3) the judgment was obtained by fraud; (4) the judg-ment (or the cause of action or claim for relief) is repugnant to the public policy of the state; (5) the judgment conflicts with another final and conclusive judgment; (6) the proceeding in the foreign country was in violation of an agreement between the parties establishing a process other than a proceeding in a foreign court; (7) in the case of jurisdiction based on personal service, the foreign court was a seriously inconvenient forum for the trial of the action; or (8) the cause of action resulted in a defamation judg-ment obtained in a jurisdiction outside the United States, unless the U.S. court determines that the defamation law applied in the foreign court “provided at least as much protection for freedom of speech and press” as would be provided by the U.S. and New York constitutions. CPLR § 5304.

While the majority of states have adopted versions of the Recognition Act, a few states have no governing statute and look

Parties seeking to enforce foreign arbitral awards in the U.S. will encounter differences in the procedural and jurisdictional rules, which are governed by treaty (the New York Convention) and statute (the FAA). In CBF Industria de Gusa S/A v. AMCI Holdings, Inc., 850 F.3d 58 (2d Cir. 2017), the Second Circuit clarified procedures for the recognition and enforcement of foreign arbi-tral awards. The court of appeals held that, under the New York Convention and the FAA, an action to convert a non-domestic arbitral award into a judgment is a “recognition and enforcement action” even though the FAA uses the term “confirmation”. The party wishing to enforce the award, therefore, can bring a single action. See John J. Buckley, Jr., Procedural and Jurisdictional Aspects of Enforcing Foreign Arbitral Awards in the United States, Legal Media Expert Guides (Sept. 20, 2018), https://www.expertguides.com/articles/procedural-and-jurisdictional-aspects-of-enforcing-for-eign-arbitral-awards-in-the-united-states/arqmupny.

Finally, the jurisdiction of United States courts over actions against foreign sovereigns is governed by the Foreign Sovereign Immunities Act of 1976 (“FSIA”), 28 U.S.C. § 1608 (2012). That statute empowers federal courts to exercise personal jurisdiction over foreign sovereigns when one of its exceptions from juris-dictional immunity applies, the sovereign has been served with process in accordance with its provisions, and there is proper venue. See, e.g., Crystallex Int’l Corp. v. Bolivarian Rep. of Venezuela, 932 F.3d 126 (3d Cir. 2019); Shapiro v. Rep. of Bolivia, 930 F.2d 1013, 1020 (2d Cir. 1991) (“Under the FSIA . . . personal juris-diction [over a foreign sovereign] equals subject matter jurisdic-tion plus valid service of process”).


A plaintiff seeking to enforce a foreign judgment within the United States must, as a prerequisite to enforcement, first have the judgment recognised by a domestic court. Recognition of a foreign judgment means that “the forum court accepts the deter-mination of legal rights and obligations made by the rendering court in the foreign country”. 2005 Recognition Act § 4 cmt. 2; Midbrook Flowerbulbs Holland B.V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 613 & n.9 (9th Cir. 2017) (applying Washington statute).

Enforcement means “application of the legal procedures of the state to ensure that the judgment debtor obeys the foreign country judgment”. Millbrook Flowerbulbs, 874 F.3d at 613 n.9. A recognised judgment is generally enforceable in any U.S. court under the Constitution’s full faith and credit clause. See Cal. Civ. Proc. Code § 1719(a) & (b). Once recognised, the judgment has res judicata effect. U.S. courts generally apply U.S. rules of issue preclusion. See Hurst v. Socialist People’s Libyan Arab Jamahiriya, 474 F. Supp. 2d 19, 32–33 (D.D.C. 2007) (“Ordinarily, a federal court applies federal law on claim and issue preclusion in non-diver-sity cases.”). However, at least one appellate court has suggested that “there is no consensus” on this issue. See United States v. Buruji Kashamu, 656 F.3d 679, 683 (7th Cir. 2011) (surveying law).


As already noted, the procedures in each state vary. Delaware law is representative of the law of most states. It provides that “[if ] recognition of a foreign-country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action seeking recognition of the foreign-country judgment”. Del. Code Ann. tit. 10, § 4809(a). “If recognition


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substantially the same under both treaties. U.S. courts have held that, in arbitration cases, it may refuse to recognise a foreign court’s decision if it “clearly misinterprets [a] Convention, contravenes the Convention’s fundamental premises or objec-tives, or fails to meet a minimum standard of reasonableness”. Cerner Middle East Limited v. iCapital, LLC, 939 F.3d 1016 (9th Cir. 2019) (citation omitted).

The U.S. is a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (“ICSID”), which establishes the legal framework for the settle-ment of investment disputes between foreign investors and sover-eign states that have consented to international arbitration pursuant to the Convention. Article 54 imposes on contracting states the obligation to enforce an award issued in an ICSID arbitration “as if it were a final judgment of a court in that State”. Courts have adopted varying approaches to the recognition and enforcement of ICSID awards. Some courts permit entry of a judgment on an ICSID award through ex parte proceedings. Other courts require award-creditors to pursue a plenary action in compliance with the FSIA’s personal jurisdiction, service and venue requirements. See Micula v. Gov’t of Romania, 714 F. App’x 18 (2d Cir. 2017); Mobil Cerro Negro, Ltd. v. Bolivarian Rep. of Venez., 863 F.3d 96 (2d Cir. 2017).

The Securing of the Protection of our Enduring and Established Constitutional Heritage Act (“SPEECH”), 28 U.S.C. §§ 4101–4105, controls domestic actions that seek recog-nition of foreign defamation judgments.

Judgments concerning domestic relations, including child custody, can be recognised and enforced pursuant to several statutes and treaties, including the International Support Enforcement Act, 42 U.S.C. § 659a; the 1980 Hague Convention on the Civil Aspects of International Child Abduction; the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Inter Country Adoption; the Uniform Child Custody Jurisdiction and Enforcement Act; and the Uniform Interstate Family Support Act.


The Model Acts provide that “[a] foreign judgment need not be recognised if the judgment conflicts with another final and conclusive judgment”. See 1962 Model Act, § 4(b)(4); 2005 Model Act, § 4(c)(4). Many state statutes incorporate this language. See CPLR § 5304(b)(5); Tex. Civ. Prac. & Rem. Code Ann. § 36.005(b)(4); Cal. Civ. Proc. Code § 1715(2). See generally Thai-Lao Lignite (Thai.) Co., v. Gov’t of Lao People’s Democratic Rep., 864 F.3d 172, 179, 190–91 (2d Cir. 2017) (enforcing Malaysian arbitration award over English judgment); Byblos Bank Eur., S.A. v. Sekerbank Turk Anonym Syrketi, 885 N.E. 2d 191 (N.Y. 2008) (affirming non-recognition of a Belgium judgment which conflicted with an earlier judg-ment of a Turkish court); Brosseau v. Ranzau, 81 S.W.3d 381 (Tex. App. 2002) (“The Mexican judgment is not entitled to recogni-tion because it is inconsistent with the order of the U.S. bank-ruptcy court”). There is no fixed rule concerning which judg-ment is recognised. See Restatement (Third) of Foreign Relations Law § 482(2)(e) & cmt. g (Am. Law Inst. 1987) (“Courts are likely to recognise the later of two inconsistent foreign judgments, but under Subsection 2(e) the court may recognise the earlier judg-ment or neither of them.”). In New York, if two foreign judg-ments are inconsistent, the later of the two will generally be recog-nised. See Koehler v. Bank of Berm. Ltd., No. M18–302, 2004 WL 444101, at *17 (S.D.N.Y. Mar. 10, 2004) (endorsing the judgment that was the latest in time). But see Byblos Bank Eur., 885 N.E.2d at 193 (last-in-time rule “need not be mechanically applied”).

to the Restatement (Third) of Foreign Relations Law, and prin-ciples of the common law set out in Hilton v. Guyot. See Societe Damenagement et de Gestion de Labri Nautique v. Marine Travelift Inc., 324 F. Supp. 3d 1004 (E.D. Wis. 2018) (applying principles of the Restatement in the absence of a Wisconsin state statute). The Restatement, § 482, lists seven grounds upon which a court may refuse to recognise an otherwise valid foreign judg-ment, including jurisdictional defects, public policy concerns, fraud, an agreement to submit the dispute to another forum, and conflict with another final judgment entitled to recognition. States also look to the Restatement (Second) of Conflict of Laws § 98 cmt. g (Am. Law Inst. 1971) which similarly enumerates a number of defences. See Derr v. Swarek, 766 F.3d 430 (5th Cir. 2014) (applying Mississippi law which follows the Restatement (Second) of Conflicts of Law).

State recognition statutes may differ on key issues. For example, the Model Recognition Acts and the Restatement do not require reciprocity. Nonetheless, Florida, Idaho, Maine, North Carolina, Ohio and Texas make reciprocity a discretionary ground for recognition, while Georgia and Massachusetts make it a mandatory ground. There are disputes as well over the law applicable to questions concerning the foreign court’s personal jurisdiction. Some courts look to the law of the rendering court, some look to the law of the enforcing court, and some look to both the foreign jurisdiction and the United States. See generally Tanya J. Monestier, Whose Law of Personal Jurisdiction? The Choice of Law Problem in the Recognition of Foreign Judgments, 96 B.U.L. Rev. 1788 (2016). Section 3(c) of the 2005 Recognition Act provides that “[a] party seeking recognition of a foreign-country judg-ment has the burden of establishing that this [Act] applies to the foreign-country judgment”. Once the threshold requirements have been met, the burden shifts to the party opposing recog-nition to demonstrate a mandatory or discretionary ground for non-recognition. Id. § 4(d). In New York, however, “[a] plain-tiff seeking enforcement of a foreign country judgment bears the burden of making a prima facie showing that the manda-tory grounds for nonrecognition do not exist”. Gemstar Canada, Inc. v. George A. Fuller Co., 6 N.Y.S.3d 552, 554 (App. Div. 2015) (internal quotation marks omitted).


As noted, the Uniform Acts apply only to money judgments, and do not apply to judgments for taxes, fines or other penal-ties, or to judgments concerning domestic relations. However, even non-monetary final judgments may be enforced, in appro-priate circumstances, under the common law. See CPLR § 5307 (expressly stating that Article 53 “does not prevent the recogni-tion of a foreign country judgment in situations not covered by this article”).

Several categories of judgments are enforceable under particular federal statutes and treaties. For example, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the Inter-American Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Panama Convention), as implemented by Chapters 2 and 3 of the FAA, require that U.S. courts honour the agreement to arbitrate and the resulting award, with certain exceptions. Parties seeking enforcement of arbitration awards in U.S. courts must demonstrate both personal and subject matter jurisdiction. See supra, question 2.4. Article V of the New York Convention and Article 5 of the Panama Convention set forth the grounds on which a domestic court may refuse the recogni-tion of an arbitral award. The grounds for non-recognition are


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a person or property. Most states require jurisdiction over the judgment debtor or his property. See Electrolines, Inc. v. Prudential Assurance Co., 677 N.W.2d 874, 877 (Mich. Ct. App. 2003). New York courts are divided on the issue. See supra question 2.4.


Neither the Restatement nor the 1962 Recognition Act addresses the statute of limitations question. The 2005 Recognition Act, however, includes a statute of limitations; it provides that “[a]n action to recognise a foreign-country judgment must be commenced within the earlier of (i) the time during which the foreign-country judgment is effective in the foreign country, or (ii) 15 years from the date that the foreign-country judgment became effective in the foreign country”. Some courts have applied the state’s general statute of limitations, while some states have their own application limitations period. See, e.g., Cal. Civ. Proc. Code § 1721 (“An action to recognise a foreign-country judgment shall be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or 10 years from the date that the foreign-country judgment became effective in the foreign country”).

The New York Convention does not contain a statute of limita-tions for enforcement of arbitral awards or restrictions with respect to foreign judgments. Parties are free to incorporate time limits into their agreements. In many states, the language of general limitations provisions have been read to include arbitrations.



This is not applicable in the U.S. See supra section 2.







The effect of local proceedings between the parties varies with the jurisdiction and the facts of the case. A U.S. court can 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-priate ongoing case, be raised by counterclaim, cross-claim or affirmative defence.


“Simple inconsistency between American state or federal law and foreign law does not render a foreign judgment unenforceable.” Ohno v. Yasuma, 723 F.3d 984,1003 (9th Cir. 2013). However, when the foreign court’s judgment conflicts with U.S. law, a court, in the proper circumstances, may refuse to recognise the foreign judgment on public policy grounds. Id. at 1003-04 (discussing cases). The SPEECH Act, 28 U.S.C. §§ 4101-4105, makes foreign defamation judgments unenforceable in U.S. courts, unless those judgments meet freedom of speech and freedom of the press constitutional standards. As noted, a party can challenge recog-nition of a foreign judgment if there is a conflicting “final and conclusive judgment”, but it is unclear whether third parties can raise this defence.


The mere fact that a foreign court applied U.S. law would have no effect on the recognition and enforcement of the foreign judgment. However, “[c]ourts have found a general policy interest in having New York law interpreted by a U.S. court where the parties agreed that New York law would govern their agreement”. David Benrimon Fine Art LLC v. Durazzo, No. 17 Civ. 6382 ( JFK), 2017 WL 4857603 at *3, (S.D.N.Y. Oct. 26, 2017) (citing Software AG, Inc. v. Consist Software Sols., Inc., No. 08 Civ. 389 (CM) (FM), 2008 WL 563449, at *25 (S.D.N.Y. Feb. 21, 2008), aff’d, 323 F. App’x 11 (2d Cir. 2009)).


As discussed above, recognition and enforcement is largely a matter of state law, and state law differs on a number of issues. In Florida, Maine, Ohio and Texas, lack of reciprocity is a discre-tionary ground for non-recognition. See, e.g., Banque Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000, 1002–04 (5th Cir. 1990) (refusing to recognise an Abu Dhabi judgment because the Texas Recognition Act treats non-reciprocity as a discretionary ground for non-recognition); Fla. Stat. Ann. § 55.605(2)(g). In Georgia and Massachusetts, lack of reciprocity is a manda-tory ground for non-recognition. Thus, a foreign litigant must determine if the state in which he wishes to enforce a judgment requires reciprocity, and whether the foreign court in which the litigant obtained the judgment does in fact reciprocate.

There is also a conflict concerning whether a party must meet the minimum contacts test to establish personal jurisdiction over


236 USA


5 Other Matters


The United States Supreme Court has agreed to review a deci-sion of the Eleventh Circuit in Outokumpu Stainless USA, LLC. v. Converteam SAS, 902 F.3d 1316 (11th Cir. 2018), cert. granted, 139 S. Ct. 2776 (2019). In that case, the Third Circuit, in conflict with two other federal courts of appeals, held that a non-signa-tory to a contract could not compel arbitration under the New York Convention through the doctrine of equitable estoppel. Although equitable estoppel is a classic mechanism for a nonparty to enforce a contract, including contracts with arbi-tration clauses, the Third Circuit held that “[p]rivate parties ... cannot contract around the Convention’s requirement that the parties actually sign an agreement to arbitrate their disputes in order to compel arbitration”. Id. at 1326 (emphasis omitted). The case presents an important issue for corporations engaging in cross-border commercial transactions, which often require performance by parties who are not actual signatories, including sureties and sub-contractors.


On July 2, 2019, delegates from the Hague Conference on Private International Law adopted the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Article 4 provides: “a judgment given by a court of a Contracting State (State of origin) shall be recognized and enforced in another Contracting State (requested State) in accordance with [Chapter II of the Convention].” “Civil and commercial judgments” are final judgments, whether money or non-money judgments. In addition, Article 7(1) sets out the exclusive reasons recognition and enforcement may be denied: improper service; fraud; and manifest incompatibility with the public policy of the requested state. The United States, to date, has not signed the treaty. As noted, however, the several states have comprehensive laws governing recognition and enforce-ment. In New York, the financial centre of the U.S., the CPLR provides greater protections, and more expansive damages, than the new treaty. Further, enforcement remedies in New York include turnover orders that reach assets held by third persons, and have no express territorial limit.

4 Enforcement


Under the Federal Rule of Civil Procedure 69(a)(1), “[a] money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution – and in proceedings supplementary to and in aid of judgment or execu-tion – must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies”.

State law remedies available to enforce foreign judgments generally include injunctions, notices of pendency, orders of attachment and receivership. Attachment actions are often the vehicle of choice for enforcing foreign judgments. For example, in Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 932 F.3d 126 (3d Cir. 2019), the Third Circuit held that a state-owned oil company was Venezuela’s alter ego, and therefore the district court had jurisdiction under the FSIA to attach the oil company’s assets and satisfy a $1.2 billion judgment.

New York and many other jurisdictions permit “turnover actions”. See CPLR § 5225(b); Cal. Civ. Proc. Code § 708.205. A turnover action is a special proceeding brought by creditors when the person with possession or control of the money or property is not the judgment debtor but a third person. Upon a sufficient showing, courts “shall require such person to pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insuffi-cient to satisfy the judgment, to deliver any other personal prop-erty, or so much of it as is of sufficient value to satisfy the judg-ment, to a designated sheriff”. CPLR § 5225(b). The New York Court of Appeals, in Koehler v. Bank of Bermuda Ltd., 12 N.Y.3d 533 (2009), held that a turnover action contains “no express territorial limitation”. Id. at 829. In Peterson v. Islamic Republic of Iran, 876 F.3d 63 (2d Cir. 2017), petition for cert. filed (U.S. May 7, 2018) (No. 17-1534), the court of appeals held that a court sitting in New York, with personal jurisdiction over a non-sov-ereign 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 personal jurisdiction is established, courts can require assets located outside New York to be “turned over” to satisfy debts. See Kassover v. Prism Ventures Partners LLC, No. 602434/2005, 2017 WL 4011218 (N.Y. Sup.), aff’d, 92 N.Y.S.3d 634 (N.Y. Feb. 19, 2019) (Mem).


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Williams & Connolly LLP

John J. Buckley, Jr. is Senior Counsel with Williams & Connolly LLP. He founded and previously led the firm’s international arbitration prac-tice 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 as 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 LLP725 Twelfth Street, N.W. Washington, D.C. 20005USA

Tel: +1 202 434 5051Email: [email protected]: www.wc.com

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 repre-sent clients in major domestic and international commercial arbitrations and litigations, and in judgment and award enforcement proceedings.

www.wc.com

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 LLP725 Twelfth Street, N.W. Washington, D.C. 20005USA

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