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1 Chapter 1 : Enforcement of Foreign Judgments Singapore ICLG Brexit - Recognition and Enforcement of Judgments Cooley Alert June 30, The Recast Brussels Regulation 1 (the "Recast Regulation") currently governs recognition and enforcement of judgments in EU Member States for proceedings issued on or after 10 January This Convention does not apply to decisions for the payment of any customs duty, tax or penalty. Article 2 This Convention shall apply to all decisions given by the courts of a Contracting State, irrespective of the name given by that State to the proceedings which gave rise to the decision or of the name given to the decision itself such as judgment, order or writ of execution. However, it shall apply neither to decisions which order provisional or protective measures nor to decisions rendered by administrative tribunals. Article 3 This Convention shall apply irrespective of the nationality of the parties. In addition, to be enforceable in the State addressed, a decision must be enforceable in the State of origin. Article 6 Without prejudice to the provisions of Article 5, a decision rendered by default shall neither be recognised nor enforced unless the defaulting party received notice of the institution of the proceedings in accordance with the law of the State of origin in sufficient time to enable him to defend the proceedings. Article 7 Recognition or enforcement may not be refused for the sole reason that the court of the State of origin has applied a law other than that which would have been applicable according to the rules of private international law of the State addressed. Nevertheless, recognition or enforcement may be refused if, to reach its decision, the court of the State of origin had to decide a question relating either to the status or the capacity of a party or to his rights in other matters excluded from this Convention by sub-paragraphs 1-4 of the second paragraph of Article 1, and has reached a result different from that which would have followed from the application to that question of the rules of private international law of the State addressed. Article 8 Without prejudice to such review as is required by the terms of the preceding Articles, there shall be no review of the merits of the decision rendered by the court of origin. Article 9 In questions relating to the jurisdiction of the court of the State of origin, the authority addressed shall be bound by the findings of fact on which that court based its jurisdiction, unless the decision was rendered by default. If the terms of the decision do not permit the authority addressed to verify whether the conditions of this Convention have been complied with, that authority may require the production of any other necessary documents. No legalisation or other like formality may be required. Article 14 The procedure for the recognition or enforcement of foreign judgments is governed by the law of the State addressed so far as this Convention does not provide otherwise. If the decision contains provisions which can be dissociated, any one or more of these may be separately recognised or enforced. Article 15 Recognition or enforcement of an award of judicial costs or expenses may be accorded by virtue of this Convention only if this Convention is applicable to the decision on the merits. This Convention shall apply to decisions relating to judicial costs or expenses even if such decisions do not proceed from a court, provided that they derive from a decision which may be recognised or enforced under this Convention and that the decision relating to costs or expenses could have been subject to judicial review. Article 16 A judgment for costs or expenses given in connection with the granting or refusal of recognition or enforcement of a decision may be enforced under this Convention only if the applicant in the proceedings for recognition or enforcement relied on this Convention. Article 17 No security, bond or deposit, however termed under the law of the State addressed, shall be required by reason of the nationality or domicile of the applicant to guarantee the payment of judicial costs or expenses if the applicant, being a natural person, has his habitual residence in or, not being a natural person, has a place of business in a State which has concluded with the State addressed a Supplementary Agreement in accordance with Article Article 18 A party granted legal aid in the State of origin shall be extended such aid in accordance with the law of the State addressed in any proceedings for the recognition or for the enforcement of a foreign decision. Article 19 Settlements made in court in the course of a pending proceeding which may be enforced in the State of origin shall be enforceable in the State addressed under the same conditions as Page 1

2 decisions falling within this Convention, so far as those conditions apply to settlements. The authorities of these States may nevertheless order provisional or protective measures regardless of proceedings elsewhere. Article 22 This Convention shall not apply to decisions rendered before the entry into force of the Supplementary Agreement provided for in Article 21 unless that Agreement otherwise provides. The Supplementary Agreement shall continue to be applicable to decisions in respect of which recognition or enforcement proceedings have been instituted before any denunciation of that Agreement takes effect. Unless it is otherwise agreed, the provisions of a Supplementary Agreement concluded under Article 21 shall prevail over the terms of any prior Conventions in force between the Parties relating to the recognition and enforcement of judgments to the extent that their terms are mutually inconsistent. Article 25 Whether or not they have concluded a Supplementary Agreement under Article 21, the Contracting States shall not conclude between themselves other Conventions relating to the recognition and enforcement of judgments within the scope of this Convention unless they consider it necessary, in particular, because of economic ties or of particular aspects of their legal systems. Article 26 Notwithstanding the provisions of Articles 24 and 25, this Convention and the Supplementary Agreements made under Article 21 shall not prevail over Conventions to which the Contracting States are or may become Parties in special fields and which contain provisions for the recognition and enforcement of judgments. It shall be ratified and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 28 This Convention shall enter into force on the sixtieth day after the deposit of the second instrument of ratification. This Convention shall enter into force for each State which ratifies it subsequently on the sixtieth day after the deposit of its instrument of ratification. Article 29 Any State not falling within the provisions of the first paragraph of Article 27 may accede to this Convention after it has entered into force in accordance with the first paragraph of Article The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. This Convention shall enter into force for such a State in the absence of any objection from a State which has ratified this Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession. In the absence of any such objection, this Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph. Article 30 Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of this Convention for the State concerned. At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands. This Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification referred to in the preceding paragraph. The Parties to a Supplementary Agreement concluded under Article 21 shall determine its territorial application. Article 31 This Convention shall have a duration of five years from the date on which it enters into force under the first paragraph of Article 28, even in its application to States which have subsequently ratified or acceded to it. In the absence of any denunciation, this Convention shall be renewed tacitly every five years. Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period. Such denunciation may be limited to any one of the territories to which this Convention applies. Such denunciation shall affect only the notifying State. This Convention shall remain in force for the other Contracting States. Article 32 Each Supplementary Agreement concluded under Article 21 shall take effect from the date specified in such Agreement; a certified copy and, if necessary, a translation into French or English shall be communicated to the Ministry of Foreign Affairs of the Netherlands. Notwithstanding the denunciation of this Convention, it shall nevertheless continue to have effect between the denouncing State and any other State with which the former has concluded a Supplementary Agreement under Article 21, unless such Agreement provides otherwise. In witness whereof the undersigned, being duly authorised thereto, have signed this Convention. Done at The Hague, on the first day of February,, in the English and French languages, both texts Page 2

3 being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Tenth Session of the Hague Conference on Private International Law, and to Cyprus, Iceland and Malta. Page 3

4 Chapter 2 : Clark Hill PLC: Reinsurance Law & Arbitration Attorney There are two statutory regimes for the recognition and/or enforcement of foreign judgments that apply only to specific subject matters: The CCAA applies to international civil or commercial disputes, and does not extend to personal law matters such as family law, succession and probate, insolvency or personal injury. At present, the Convention is only an agreement in principle but, if signed and ratified by enough countries, it may offer businesses a viable alternative to arbitration for resolving international commercial disputes. Negotiations over the Convention go back to at least, when a special commission of the Hague Conference on Private International Law concluded that it would be desirable and feasible to draw up a convention on the recognition and enforcement of judgments in civil and commercial matters. The Hague Conference is an intergovernmental organization, with over 60 member states. It meets in plenary sessions every four years. Between plenary sessions,working groups made up of delegations from member states, called "special commissions," draft conventions that can be submitted for adoption at a later plenary session. The special commission that drafted the Convention on Choice of Court Agreements included attorneys from the U. This Convention has therefore received high-level attention in the U. Originally, the special commission set out to craft uniform rules of international jurisdiction and enforcement of judgments generally. Because, however, the special commission could not reach such a broad agreement, it re-evaluated its ambitions and narrowed the scope of the Convention to "exclusive choice of court agreements. Whilst within the EU, for instance, a regime has developed allowing for mutual recognition and enforcement of court judgments, this has not been the position elsewhere. The Convention seeks to redress the balance. Parties to international business transactions often designate the forum and governing law to be applied, should a dispute arise, and embody their agreement in "choice of court" clauses. However, such choice of court provisions are not always enforced, either by the court the parties have chosen to hear their disputes or by the courts of other jurisdictions. Courts have invoked various doctrines in refusing to enforce choice of court agreements. Some courts, for instance, refuse to hear cases where the disputed transaction lacks a "reasonable relationship" to the forum. The refusal to enforce choice of court provisions not only disregards the original agreement of the parties, but it generates other problems for international litigants as well. International litigants, for example, are sometimes forced to litigate essentially the same lawsuit in more than one forum at the same time. This happens when one or both parties files suit in a court other than the one they had previously agreed should decide their disputes. Such parallel proceedings are not only expensive, but they also pose complex strategic problems and present both the risk of conflicts between courts and inconsistent judgments, which can com-pound the issues in dispute even further. These problems led the U. As mentioned above, the scope of the Convention was later narrowed to deal only with the enforcement of "exclusive choice of court agreements. What the Convention Does The Convention seeks to solve the problems discussed above by applying three main rules that are designed to allow international businesses to agree on the forum where they want to have a dispute heard, should one arise, and to rely on the enforcement of that choice all the way through litigation and the satisfaction of judgment. These rules rely on the concept of an "exclusive choice of court agreement," that is, an agreement to litigate a dispute in the chosen court s and in no other. First, the chosen court has exclusive jurisdiction over the dispute and cannot decline to hear the case. It should be noted that the Convention also contains an "optional" fourth rule by means of the declaration process under Article 22,whereby Contracting States may declare that their courts will recognize and enforce judgments given by courts of other Contracting States designated in a non-exclusive choice of court agreement. It remains to be seen how far this option will be taken up. As already indicated, the Convention is intended to apply only to international commercial matters. Other excluded matters include disputes over real property, family law matters, wills, insolvency, and personal injury claims. Also excluded are tort claims that do not arise from a contractual relationship, some maritime claims, anti-trust claims, claims for nuclear damage, and most but not all intellectual property Page 4

5 claims. Excluding particular matters from coverage, however,may provide more certainty and uniformity than exists under the New York Convention, which still allows individual states to refuse to recognize an arbitration award where they determine that it concerns matters that are "not policy. A court does not have to enforce a judgment, for example, where a party did not receive notice of the proceeding,where the judgment was obtained through extrinsic fraud, or where a party to the purported agreement lacked capacity to make the agreement. Courts may also refuse to enforce a judgment to the extent that it awards non-compensatory damages, like punitive damages. Insurance and Reinsurance Disputes The Convention contains specific provisions governing insurance and reinsurance agreements. International insurance and reinsurance disputes are governed by the rules of the Convention even where the dispute is in respect of a claim for an indemnity for underlying losses paid in relation to a matter to which the Convention does not apply. If the contract in dispute is an insurance or reinsurance contract between two or more commercial entities, then the Convention should in principle apply. The dispute would still be heard in accordance with the Convention rules. Insurance and reinsurance agreements would, however, still have to contain an exclusive choice of court clause in order to fall within the scope of the Convention. Current Status The Convention is not "self-executing. No countries have yet become parties to it. It remains, therefore, only an agreement in principle at present. It is understood that member states are still waiting for a further report on the Convention to come out, which might not be published until late spring at the earliest. Becoming a party requires a country to sign the Convention and then deposit an instrument of ratification at the Hague. Ratification, in most countries, generally requires some kind of internal political process approving the Convention. In the United States, for example, the Convention would have to be submitted by the President to the Senate, where it would have to win approval. In the United States, the next step would most likely be for the House and Senate to adopt legislation implementing the Convention. Alternatively, Congress could adopt more specific legislation directing how the Convention is to be applied. Currently, the Convention has not been signed by the United States, nor has it been submitted to the Senate for its advice and consent. According to the State Department, however, becoming a party to the Convention is a high priority and there is no reason that the United States will not become a party. So far as the UK is concerned, the situation is potentially more complex, not least because of the impact of EU law generally and, more specifically, the jurisdiction regime established some time ago for EU members and certain other countries. In the UK there are potentially four different legal regimes that apply at present to jurisdictional matters: Further, these special rules e. For several decades, businesses, and insurers and reinsurers in particular, have relied on the general enforceability of arbitration agreements and awards. The enforceability of arbitration agreements and awards is largely attributable to the widespread acceptance of the New York Convention. That widespread acceptance may also be partially responsible for the preference of insurers and reinsurers for resolving disputes through arbitration. The Hague Convention could make litigation a viable alternative to arbitration, but only if it is widely adopted. Page 5

6 Chapter 3 : Enforcement Of Judgments In Hong Kong: An Overview. Conventus Law Convention on Judicial Assistance, Recognition and Enforcement of Judgments in Civil and Commercial Matters signed between France and the UAE (the Paris Convention). France. GCC Convention. Text Jurisdiction, recognition and enforcement of judgments in civil and commercial matters Brussels I The regulation lays down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in European Union EU countries. A judgment given in an European Union EU country is to be recognised without special proceedings, unless the recognition is contested. A declaration that a foreign judgment is enforceable is to be issued following purely formal checks of the documents supplied. The regulation lists grounds for non-enforcement; however, courts are not to raise these of their own motion. The regulation does not cover revenue, customs or administrative matters. Nor does it apply to: Domicile is determined in accordance with the domestic law of the EU country where the matter is brought before a court. If a party is not domiciled in the EU country of the court considering the matter, the court is to apply the law of another EU country to determine whether the party is domiciled in said state. In the case of legal persons or firms, domicile is determined by the country where they have their statutory seat, central administration or principal place of business. In the case of trusts, domicile is defined by the court that is considering the case by applying its own rules of private international law. Suing the defendant in another EU country Apart from the basic principle on jurisdiction, in certain circumstances a defendant may be sued in the courts of another EU country. The regulation lists areas of jurisdiction where this is so: In respect of liability insurance or insurance of immovable property, the insurer may, in addition, be sued in the courts for the place where the harmful event occurred. The regulation also lays down rules on jurisdiction in matters relating to contracts concluded by consumers. Consumers are defined as persons who conclude a contract with a professional for a purpose outside of their own trade or profession. All contracts concluded with a person who pursues commercial or professional activities in the EU are covered, with the exception of contracts of transport, other than those providing for a combination of travel and accommodation for an inclusive price. The consumer is protected in the way described here if the contract concluded on the sale of goods is financed on instalment credit terms or through a loan repayable by instalments or any other form of credit. In order for the consumer to enjoy this protection in other cases, the contract must have been concluded with a person who pursues commercial or professional activities in the EU country in which the consumer is domiciled or directs such activities to that country. A consumer may bring proceedings either in the courts of the EU country in which the defendant is domiciled or in the courts for the place where the consumer the plaintiff is domiciled. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the EU country in which the consumer is domiciled. In matters relating to individual contracts of employment, employees may either sue their employer in the courts of the EU country where the employer is domiciled or in the courts of the EU country where the employee habitually works. An employee who does not habitually work in any one country may sue the employer in the courts for the place where the business that engaged the employee has its seat. An employer who is not domiciled in any EU country, but has a branch, agency or other establishment in one of the EU countries, is deemed to be domiciled in that country. An employer may bring proceedings against an employee only in the courts for the place where the employee is domiciled. Regardless of domicile, the following courts have exclusive jurisdiction in proceedings concerning: If the parties, one or more of whom is domiciled in the EU, have concluded a choice of jurisdiction clause, the agreed court will have jurisdiction. The regulation lays down a number of formalities that must be observed in such choice of jurisdiction agreements: Similarly, there are provisions for rules regarding co-defendants, actions on a warranty, guarantee or other third-party proceedings, counterclaims and matters relating to a contract if the action may be combined with an action relating to rights in immovable property. The regulation also provides a mechanism to handle cases pending elsewhere lis pendens and related actions. Recognition and enforcement Page 6

7 A judgment given in an EU country is to be recognised in the other EU countries without any special procedure being required. Judgment means any judgment given by a court or tribunal of an EU country, whatever the judgment may be called, including a decree, order, decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as to its substance. A judgment will not be recognised if: A court in which recognition is sought of a judgment given in another EU country may stay the proceedings, if an ordinary appeal against the judgment has been lodged. A judgment is to be enforced in another EU country when, on the application of any interested party, it has been declared enforceable there. The parties may appeal against a decision on an application for a declaration of enforceability. Superseding the Brussels Convention of The regulation supersedes the Brussels Convention of, which was applicable between the EU countries before the regulation entered into force. The convention continues to apply with respect to those territories of EU countries that fall within its territorial scope and that are excluded from the regulation pursuant to Article of the Treaty establishing the European Community now Article of the Treaty on the Funtioning of the European Union. The regulation also lists a number of other conventions, treaties and agreements between EU countries that it supersedes. Even after the regulation entered into force, questions of jurisdiction between Denmark and the other EU countries continued to be governed by the Brussels Convention of On 19 October, the EU concluded an agreement with Denmark on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters that extended the provisions of the regulation to that country. It entered into force on 1 July As provided for in the Protocol on the position of the United Kingdom and Ireland annexed to the Treaties, these two countries have indicated their wish to take part in the adoption and application of the regulation. Page 7

8 Chapter 4 : Cross border enforcementâ overview - Lexis PSL, practical guidance for judgments in civil and commercial matters, which has replaced the abovementioned Brussels Convention, â the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition. Print With more cross-border trade and foreign investments, businesses may find themselves in more disputes with counterparties before foreign courts or in international arbitration. However, that court judgment may not end the dispute. The losing party the judgment debtor may refuse to pay on the judgment or settle the dispute at a reasonable discount in exchange for giving up appeal rights, and the prevailing party the judgment creditor may not have seized assets prior to the judgment. In this situation, the judgment creditor or a distressed debt fund that purchases the judgment may seek to recognize and enforce the judgment in countries where the judgment debtor has assets. Where the final judgment is large, the parties may find themselves fighting or defending a global campaign to recognize and enforce the judgment in multiple countries where the judgment debtor has assets. This article provides a brief practical overview of multi-jurisdictional enforcement of judgments. First, this newsletter surveys the laws on recognition and enforcement of foreign judgments of several different jurisdictions. The Hague Convention on Choice of Court Agreements has not yet entered into force, and there are accordingly procedural and substantive differences in the enforcement laws across countries, which should be accounted for in any global strategy. Second, this newsletter touches on some practical considerations to mount a successful global campaign to either enforce a judgment or defend against enforcement. Survey of Recognition and Enforcement Laws The laws that govern recognition and enforcement proceedings of foreign country judgments in various jurisdictions are often similar but not identical. In the United States, recognition and enforcement of foreign judgments is governed by state law. Under Article 53, a foreign judgment is enforceable in New York if the foreign judgment is final, conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal. Other states, such as California, Illinois and the District of Columbia, have likewise enacted a version of the Recognition Act. Similar to New York, foreign judgments in California, Illinois and the District of Columbia that grant or deny recovery of a sum of money and that are final, conclusive, and enforceable under the law of the foreign country should be recognized. Ik Chi Lee, Cal. However, in contrast to New York, California, Illinois and the District of Columbia have now enacted the version as opposed to the version of the Recognition Act that remains in effect in New York. Those grounds include, among others, if the judgment was rendered by a partial tribunal, the judgment was obtained by fraud, recognizing the judgment would be repugnant to public policy, the judgment conflicts with another final and conclusive judgment, or if the foreign proceeding was contrary to an agreement between the parties. Where a judgment debtor can show one or more of these grounds exist, a United States court might not recognize the foreign judgment in question. Foreign judgments are not directly enforceable in the United Kingdom. Instead, depending on which country the foreign judgment is from, there are different enforcement procedures prescribed by regulation, statute or the common law. For judgments from other European Union member states or parties to the Lugano Convention, the procedure for registering a foreign judgment in the UK is set out in the Brussels I Regulation. The Regulation provides the simplest procedure for enforcing foreign judgments in the UK, and is not limited to money judgments or final judgments. Where the judgment of an EU member state or a party to the Lugano Convention has been certified with a European Enforcement Order, it may be enforced in the UK without the need to apply for registration of the judgment. For judgments from particular Commonwealth countries and former British colonies, the enforcement procedure is set out in the Administration of Justice Act For judgments from particular foreign countries that have reciprocal arrangements for recognizing UK judgments in their jurisdictions, the enforcement procedure is set out in the Foreign Judgments Reciprocal Enforcement Act The two statutes provide for limited defenses to registration. There is no provision for the UK court to reconsider the merits of the case during the registration process. For judgments from non-eu countries that are Page 8

9 not covered by either the Administration of Justice Act or the Foreign Judgments Reciprocal Enforcement Act, the common law allows the holder of a foreign judgment to sue on that judgment as a debt. This latter group includes, for example, judgments from the United States and Russia. In England and Wales, foreign judgments can be enforced at common law only if they are: A foreign judgment may be final and conclusive even though an appeal is pending in a foreign country; and 3 issued by a court that had jurisdiction over the party against whom the judgment is to be enforced, which the English court will evaluate as a question of English private international law rather than the law of the foreign country. As with the statutes referred to above, the common law provides for some defenses to enforcement on the grounds of fraud, breaches of natural justice, and that the judgment is contrary to the English public policy. Importantly, there is no basis for the English courts to question or reconsider the merits of a foreign judgment. Enforcement of foreign judgments at common law in Scotland and Northern Ireland is on similar terms. Russian cassation court referred to the Agreement between the UK and Russia on economic co-operation dated November 9, which established a national regime of access to the trial on the territory of both countries. The court also emphasized the right to a fair trial established by the Convention for the Protection of Human Rights and Fundamental Freedoms. The court also referred to Agreement on partnership and cooperation between the European Communities and the Russian Federation and Vienna Convention on International Treaties. This legal position has been relied upon in other cases involving the enforcement of UK and Dutch judgments in Russia. LLC Podyomnie technologii, case No. Moreover, there has been a trend in Russia to allow enforcement of a broader category of judgments, such as decisions on procedural matters and summaryjudgments. In particular, in Mabofi v. The recognition of foreign judgments in France is governed by a number of established and limited grounds. However, these grounds are not codified legislatively but rather arise from jurisprudence, where they have gradually evolved. The famous Munzer decision Civ. They were as follows: Two of these conditions have since been struck down in subsequent cases. In the Cornelissen decision Civ. This requirement had been heavily criticized by doctrinal authorities and was largely a French particularity. When deciding to remove it, the Cour de cassation noted that it was sometimes relevant but largely unnecessary in the assessment of whether a foreign judgment ought to be executed on French territory. Moreover, in the Bachir ruling of Civ. Today, there are therefore three criteria used to evaluate foreign judgments in France: It is also worth noting that this general regime governing the recognition of foreign judgments is in some narrow cases where treaties are in place, inapplicable. For example, the recognition of a civil or commercial judgment from one E. Enforcement under the Ordinance is the easier route because it requires only an ex parte application with the local court. But this avenue is limited to judgments entered in the following countries: The other substantive requirements for recognition under the Ordinance are that the underlying judgment 1 must be final and conclusive and 2 must be a money judgment. A Hong Kong court will not enforce a foreign judgment that provides for injunctive relief or is penal in nature. See Nanus Asia Co. A Hong Kong court will not reexamine the merits of the underlying foreign litigation. An action to enforce a foreign judgment at common law is a comparatively cumbersome process. It is in essence an independent suit in Hong Kong and the judgment creditor must follow normally applicable service procedures. Islamic Republic of Iran Shipping Lines v. Pilot Lead Investments Ltd. To be eligible for common-law recognition, the judgment must 1 be for a definite sum of money; 2 be final and conclusive; and 3 have been entered by a court with competent jurisdiction over the defendant. With respect to finality, a Hong Kong court will generally refrain from enforcing a judgment during the pendency of an appeal. This raises the possibility of undue delay and asset dissipation. Judgment creditors can ameliorate that risk by requesting interim injunctive relief. With respect to jurisdiction, it is governed by private international law as interpreted in Hong Kong, not the law of the foreign forum. As with the Ordinance, only limited defenses on the grounds of fraud, breaches of natural justice, and Hong Kong public policy can be raised. There is no mechanism for reconsideration of the merits of the underlying foreign litigation. The recognition in Hong Kong of judgments entered on the Chinese mainland is governed by a separate set of rules. Practical Considerations for a Global Campaign Where a judgment creditor is considering filing multi-jurisdictional enforcement proceedings, or a Page 9

10 judgment debtor finds itself defending multi-jurisdictional enforcement proceedings, certain practical considerations can make a difference between a winning and losing campaign. Below are some key considerations that every judgment creditor and debtor should bear in mind. First, the location of assets. Before incurring the cost and time of bringing an enforcement action, a judgment creditor should be reasonably certain that there are assets against which to enforce the domesticated judgment and that those assets cannot be moved out of the jurisdiction while the enforcement action is pending. When formulating a defense strategy, a judgment debtor should consider whether it can legally remove assets from the jurisdiction without affecting its business and whether information on the location of its assets is easily obtained. For example, a publicly-listed company may have more public information about its assets and may be less able to move its assets quickly than a privately held company. Second, the sequence of enforcement actions. If the judgment will be domesticated in several jurisdictions, the judgment creditor should decide whether to bring all the enforcement actions at once, or whether to bring them seriatim. If the recognition actions will be brought one after another, there could be an advantage in first domesticating a judgment in a respected jurisdiction with straightforward enforcement procedures, like New York, or choosing a particular jurisdiction which has prior judgments rendered by the foreign court that issued the judgment. Thereafter, the judgment creditor could proceed to domesticate the judgment in other jurisdictions with a higher threshold for domesticating foreign judgments. Although a judgment debtor would generally not be in a hurry to obtain a decision in any of the enforcement actions against it, if it was highly confident in defeating an enforcement action in a particular jurisdiction, it might consider speeding that action up to obtain a favorable decision first, such as by electing not to make procedural motions that could slow down the action. Some jurisdictions may allow assets to be frozen pending the outcome of the recognition proceedings, such as in France or New York, whereas other jurisdictions may require a high threshold to be met before the courts will freeze assets before the court has domesticated a foreign judgment. A judgment creditor should consider asset freezing wherever possible and a judgment debtor might consider removing assets from jurisdictions that easily allow asset freezes prior to the judgment creditor commencing an action. Some jurisdictions allow broad discovery, such as the United States. It might even be possible to get discovery from third parties, such as financial institutions, whether located within the U. In other jurisdictions, courts may only allow limited discovery, or bank secrecy laws may limit the amount of information that can be obtained from financial institutions. As part of a global strategy, a judgment creditor should consider an enforcement action in jurisdictions that permit liberal discovery. A judgment debtor should be aware that if an enforcement action is brought in a jurisdiction with liberal discovery, that particular action could be especially damaging to its global defense. Every one of the issues above requires coordination at the global level to implement effectively. There are also a myriad of mundane but important ways for global collaboration, such as sharing translations of document exhibits to reduce client fees and cross-checking pleadings in every jurisdiction to ensure that they are consistent with each other. It is therefore important for the judgment creditor and debtor not only to retain the best lawyers in each jurisdiction but to assemble a team of lawyers in multiple countries who collaborate well with each other. This is one reason Quinn Emanuel not only has leading litigation specialists worldwide, but also places a premium on collaboration across offices and operating as one firm. Page 10

11 Chapter 5 : EUR-Lex - R - EN - EUR-Lex the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [] OJ L/3, which superseded the Lugano Convention [] OJ C/2. The plaintiffs then brought an action in Ontario seeking recognition and enforcement of the Virginia judgment and injunction in Ontario. On the motion for summary judgment, the Ontario Court considered whether the Virginia Court had exercised jurisdiction based on the Ontario test for jurisdiction: The defendants owned and operated an interactive, commercial website through which users purchased TV set-top boxes. The Ontario Court found that the defendants had a real substantial connection to Virginia based on the nature of the business they were operating, specifically: The plaintiff commenced proceedings in Ontario in in respect of the South Carolina and obtained an ex parte Mareva injunction freezing order against the defendant. The plaintiff argued, among other things, that the limitation period did not commence until the plaintiff received a report from investigators that the defendant had exigible assets in Ontario. The plaintiff relied on the recent case of Independence Plaza 1 Associates L. After the Plaintiffs appealed, the Defendant sought a security for costs against the Plaintiffs, who were non-ontario residents from Ecuador. The Plaintiffs argued that security for costs should not be ordered because of, among other reasons, the unique nature of a recognition and enforcement action. The Plaintiffs relied on the Supreme Court of Canada decision on jurisdiction in the same action: Yaiguaje, SCC 42, [] 3 S. King, among others, in Italy, to try to recover the money. King did not defend the Italian proceedings. The Italian court ruled against him, and ordered him to pay the deposit. King did not pay the judgment on the grounds that the Italian court lacked jurisdiction. Canada has not yet signed or ratified the Hague Convention. It is not yet known when Canada will ratify the Hague Convention. The British Columbia Supreme Court originally ordered the defendants to cease all sales of counterfeit product on the internet. The defendants did not comply, and have hidden themselves somewhere unknown, such that the plaintiff could not practically use the courts to compel the individuals responsible from ceasing this activity. Federal Courts may be recognised and enforced in Ontario, Canada. The test for whether the Court of Ontario will recognize and enforce a U. Court have jurisdiction, in accordance with the principles of private international law as applied by Canadian courts? The Ontario Court will also consider the following, limited defences of: Page 11

12 Chapter 6 : Lawyers Enforcing U.S. Judgments in Ontario Canada - Gilbertson Davis LLP The Recast Jurisdiction Regulation applies to all the EU Member States, including Denmark, according to the agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [] OJ L 79/4. Domestic judgments are generally enforceable see Question 6. Foreign judgments Except for judgments that cannot be enforced see Question 6, the recognition and enforcement of a foreign judgment is expressly excluded where the bringing of the proceedings in the foreign court was contrary to a valid dispute resolution agreement and the judgment debtor did not submit to such jurisdiction section 3, Foreign Judgments Restriction on Recognition and Enforcement Ordinance Cap Conditions for recognition and enforcement 8. What are the conditions to enforce and recognise a judgment? Domestic judgments The conditions mentioned below see below, Foreign judgments are not relevant to the recognition and enforcement of domestic judgments in Hong Kong. Once judgment is delivered, the below factors are no longer relevant, and the judgment, once sealed, is recognised and can be enforced. Interlocutory orders, such as interlocutory injunctions, are also enforceable. No enforcement proceedings can be brought on any judgment after the expiration of 12 years from the date on which the judgment was given section 4 4, Limitation Ordinance Cap LO. A copy of the same has been served personally on the person against whom enforcement is sought. With a mandatory injunction, the copy has been so served before the expiration of the time within which that person is required to do the act stated in the mandatory injunction order 45, rule 7, RHC. For enforcement of foreign judgments, "jurisdiction" means jurisdiction according to the rules of conflict of laws or private international law under the law instead of the law of the foreign jurisdiction whose court gave the judgment seequestion Defendant had proper notice of the proceedings. Generally, in order to be enforceable, a foreign judgment must not be obtained in proceedings that were contrary to natural justice. However, this does not mean every procedural defect in the foreign proceeding will impeach the foreign judgment. No incompatibility with public policy. This condition applies to both enforcement of foreign judgments and arbitral awards see Question This condition is not applicable. No conflicting domestic or foreign judgment exists. If a foreign judgment is inconsistent with a prior judgment or foreign judgment that is entitled to recognition, it will not be recognised or enforced in Hong Kong. With foreign judgments, the judgment must be final and conclusive, which means that the judgment must conclusively, finally and forever establish the existence of the debt so as to make it res judicata between the parties. No enforcement proceedings can be brought after the expiration of 12 years from the date on which the cause of action accrued that is the date that judgment was given section 4 3, LO. To be recognised and enforceable under the common law, in addition to the above conditions, a foreign judgment must meet the following preconditions: The judgment was not obtained by fraud. The judgment was not based on a foreign public, penal or revenue law. Under the Foreign Judgments Reciprocal Enforcement Ordinance Cap, for a foreign judgment to be registered and enforceable, it must be pronounced by a "superior" court in a designated jurisdiction see Question 1. Otherwise the conditions are substantially the same as those under the common law. What are the grounds for refusing recognition and enforcement? Page 12

13 Chapter 7 : Jurisdiction and Enforcement of Judgments Post-Brexit: State of Play LexisNexis Webinars. Offering minimal impact on your working day, covering the hottest topics and bringing the industry's experts to you whenever and wherever you choose, LexisNexis  Webinars offer the ideal solution for your training needs. Home Newsroom News Time to Act: Recognition and Enforcement of Judgments Post Brexit There is no doubt that Brexit will happen; the only open question is when. One of the post-brexit realities we can anticipate, however, is that the recognition and enforcement of foreign judgments between the remaining EU Member States and the UK is likely to become a rather convoluted and burdensome process. Therefore, anyone seeking enforcement of a judgment rendered by a UK court in one of the remaining Member States or vice versa is advised to try to initiate execution proceedings before 29 March â the date on which Brexit is currently set to occur. Likewise, before filing a complaint, anyone who has a possible claim against a person or a company in the UK should carefully assess where a judgment would need to be enforced and whether the enforcement of such a judgment would even be possible after Brexit. Unfortunately, even if a complaint was filed today, final judgment is unlikely to be rendered by 29 March, considering the average duration of proceedings for complex matters in German courts. Inapplicability of Regulations on European Civil Procedure Post Brexit Current EU regulations provide rules for a variety of cross-border issues in international civil procedure. As these regulations apply directly â and do not have to be transformed into the national law of the Member State â they will in principle cease to apply to the EU-UK relationship at the moment Brexit occurs. Moreover, it is unclear whether these regulations will be replaced at all and, if so, in what way. However, even if this piece of legislation was enacted in its current form, this clause would only lead to the application of EU law within the UK â and not apply to the relationship between the UK and the remaining EU Member States. While the UK can of course decide for itself under which conditions it will recognize and enforce a judgment from one of the remaining EU Member States, it naturally does not have the competence to make rules for the recognition and enforcement of judgments from the UK within the Member States. This requires a withdrawal agreement. The content of a withdrawal agreement regarding questions of European civil procedure remains open. So far, both the UK government [1] and the European Commission [2] have issued position papers on this topic. Both papers state as an objective for the negotiations that the current applicable law will continue to apply to proceedings pending at the moment of the withdrawal. What is going to happen with regard to proceedings after that date remains open. Regulations pre- and post Brexit Regulation EU no. The regulation provides for the international jurisdiction of courts, the requirements regarding choice-of-court agreements, and the recognition and enforcement of judgments. If the UK and the remaining Member States do not execute an appropriate withdrawal agreement, then the national law of the respective forum state would apply post Brexit. However, the Convention is not a perfect solution as it falls short of the modern regulations. Right now, the Member States recognize and enforce judgments of the other Member States without the need of a so-called exequatur procedure. The regulation therefore makes it possible to enforce a judgment from another EU country in almost the same amount of time as it would take to enforce a national judgment. The renouncement of exequatur proceedings is not a matter of course. The current process relies on the fact that all Member States have to obey the same laws by virtue of their membership in the EU, something that will of course no longer be the case after Brexit. If the UK and the EU agree upon rules for European civil procedure in an appropriate withdrawal agreement, this will unlikely include an entire omission of exequatur proceedings. But even if simplified exequatur proceedings are enacted post Brexit and this would be the best-case scenario, it still would mean that the enforcement of judgments will become a more difficult and time-consuming process than it is right now. But as mentioned above, the Convention, by virtue of its operation, adds complexity to the process which currently does not exist. The Convention allows for the enforcement of judgments over a specified amount for a definite sum of money. And in order to enforce a UK Page 13