ICLG The International Comparative Legal Guide to:

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1 ICLG The International Comparative Legal Guide to: Enforcement of Foreign Judgments nd Edition A practical cross-border insight into the enforcement of foreign judgments Published by Global Legal Group, with contributions from: Astashkevich and partners Attorneys at Law Allen & Gledhill LLP Archipel Banwo & Ighodalo Bär & Karrer Ltd. Blake, Cassels & Graydon LLP Brain Trust International Law Firm Cliffe Dekker Hofmeyr Covington & Burling LLP Eversheds Sutherland GASSER PARTNER Attorneys at Law Gatmaytan Yap Patacsil Gutierrez & Protacio Gürlich & Co., attorneys-at-law Hamdan AlShamsi Lawyers & Legal Consultants Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Hughes Hubbard & Reed LLP Jafa&Javali, Advocates Jones Day King & Wood Mallesons Linklaters LLP Makarim & Taira S. Matheson MinterEllison Montanios & Montanios LLC N-Advogados Nuno Albuquerque, Deolinda Ribas, Sociedade de Advogados, R.L. Pinheiro Neto Advogados Polenak Law Firm Rahmat Lim & Partners Schönherr Rechtsanwälte GmbH TripleOKlaw Advocates LLP Waselius & Wist

2 The International Comparative Legal Guide to: Enforcement of Foreign Judgments 2017 General Chapters: 1 Enforcement Against State Parties in England: A Creditor s Long Journey Through Sovereign Immunity Louise Freeman & Chloé Bakshi, Covington & Burling LLP 1 2 European Union Sébastien Champagne & Vanessa Foncke, Jones Day 7 Contributing Editors Louise Freeman & Chloé Bakshi, Covington & Burling LLP Sales Director Florjan Osmani Account Director Oliver Smith Sales Support Manager Paul Mochalski Editor Sam Friend Senior Editors Suzie Levy, Rachel Williams Chief Operating Officer Dror Levy Group Consulting Editor Alan Falach Publisher Rory Smith Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: Fax: info@glgroup.co.uk URL: GLG Cover Design F&F Studio Design GLG Cover Image Source istockphoto Printed by Stephens & George Print Group March 2017 Copyright 2017 Global Legal Group Ltd. All rights reserved No photocopying ISBN ISSN Strategic Partners Country Question and Answer Chapters: 3 Australia MinterEllison: Beverley Newbold & Tamlyn Mills 13 4 Austria Schönherr Rechtsanwälte GmbH: Maximilian Raschhofer & Sebastian Lukic 19 5 Belgium Linklaters LLP: Joost Verlinden & Nino De Lathauwer 25 6 Brazil Pinheiro Neto Advogados: Renato Stephan Grion & Guilherme Piccardi de Andrade Silva 30 7 Canada Blake, Cassels & Graydon LLP: Ryder Gilliland & Daniel Styler 36 8 China Linklaters LLP: Melvin Sng & Justin Tang 42 9 Cyprus Montanios & Montanios LLC: Yiannis Papapetrou Czech Republic Gürlich & Co., attorneys-at-law: Richard Gürlich & Kamila Janoušková England & Wales Covington & Burling LLP: Louise Freeman & Chloé Bakshi Finland Waselius & Wist: Tanja Jussila France Archipel: Jacques-Alexandre Genet & Michaël Schlesinger Germany Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh: Dr. Nils Schmidt-Ahrendts & Dr. Johanna Büstgens India Jafa&Javali, Advocates: Kirit S. Javali Indonesia Makarim & Taira S.: Alexandra Gerungan & Hendrik Alfian Pasaribu Ireland Matheson: Julie Murphy-O Connor & Gearóid Carey Kenya TripleOKlaw Advocates LLP: John M. Ohaga & Gloria Mwika Liechtenstein GASSER PARTNER Attorneys at Law: Thomas Nigg & Domenik Vogt Macedonia Polenak Law Firm: Tatjana Popovski Buloski & Aleksandar Dimic Malaysia Rahmat Lim & Partners: Jack Yow Netherlands Eversheds Sutherland: Jurjen de Korte Nigeria Banwo & Ighodalo: Abimbola Akeredolu & Chinedum Umeche Philippines Gatmaytan Yap Patacsil Gutierrez & Protacio: Jess Raymund M. Lopez & Vladi Miguel S. Lazaro Portugal N-Advogados Nuno Albuquerque, Deolinda Ribas, Sociedade de Advogados, R.L.: Nuno Albuquerque & Filipa Braga Ferreira Russia Astashkevich and partners Attorneys at Law: Anastasia Astashkevich Singapore Allen & Gledhill LLP: Tan Xeauwei & Melissa Mak South Africa Cliffe Dekker Hofmeyr: Jonathan Ripley-Evans & Fiorella Noriega Del Valle Spain King & Wood Mallesons: Alfredo Guerrero & Fernando Badenes Switzerland Bär & Karrer Ltd.: Saverio Lembo & Aurélie Conrad Hari 159 PEFC/ PEFC Certified This product is from sustainably managed forests and controlled sources 31 Taiwan Brain Trust International Law Firm: Hung Ou Yang & Jia-Jun Fang UAE Hamdan AlShamsi Lawyers & Legal Consultants: Hamdan Alshamsi USA Hughes Hubbard & Reed LLP: Chris Paparella & Andrea Engels 174 Further copies of this book and others in the series can be ordered from the publisher. Please call Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

3 EDITORIAL Welcome to the second edition of The International Comparative Legal Guide to: Enforcement of Foreign Judgments. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations relating to the enforcement of foreign judgments. It is divided into two main sections: Two general chapters. These chapters are designed to provide readers with a comprehensive overview of key issues affecting the enforcement of foreign judgments, particularly from the perspective of a multi-jurisdictional transaction. Country question and answer chapters. These provide a broad overview of common issues in the enforcement of foreign judgments in 31 jurisdictions. All chapters are written by leading lawyers and industry specialists, and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editors Louise Freeman and Chloé Bakshi of Covington & Burling LLP for their invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at Alan Falach LL.M. Group Consulting Editor Global Legal Group Alan.Falach@glgroup.co.uk

4 Chapter 1 Enforcement Against State Parties in England: A Creditor s Long Journey Through Sovereign Immunity Louise Freeman Covington & Burling LLP Chloé Bakshi When a private party seeks to enforce a judgment they have obtained against a State party, they face a major obstacle on the hazardous path to reparation: the law of sovereign immunity. In addition, it is worth noting that State immunity principles and State privileges will impact on many procedural rules including those regarding service, burden of proof, disclosure and interim relief. What is Immunity About? The law of sovereign immunity is a body of rules protecting States from interference by domestic Courts with their people and property situated in other countries. The body of rules is well-developed in jurisdictions that are often chosen for enforcement proceedings, including England, the United States, Switzerland, France, The Netherlands and South America. It is also found in international treaty law, such as the European Convention on State Immunity and the United Nations Convention on Jurisdictional Immunities of States and Their Property 2004, 2 and in customary international law. In England, the law of sovereign immunity is found principally in the State Immunity Act 1978 (the SIA ), as explained and interpreted in subsequent case law. Immunity From What? There is an important distinction to make at the outset between: a) sovereign immunity from adjudication (or jurisdiction) this applies to the situation where a State is party to a substantive claim brought before the English Court. The question for the Court to answer will be: Is the State party immune to the jurisdiction of the Court? In other words, does the Court have adjudicative jurisdiction over this State and can it proceed to hear the dispute?; and b) sovereign immunity from enforcement this applies to the situation where a State is party to enforcement proceedings instituted in England. Because the judgment creditor must start an action in the English Court for the value of the decision he is trying to enforce, the questions posed to the Court are twofold: (i) Is the sovereign party immune from jurisdiction of the English Court in relation to the enforcement proceedings instituted before it? (this is a question of State immunity from enforcement jurisdiction); and (ii) Is the sovereign asset on which enforcement is sought immune from execution in England? (this is a question of State immunity from execution). This article focuses on category (b) above. Specifically, this article will focus on the rules applicable in circumstances where a private party seeks to enforce in England a decision made by a Court against a sovereign party and to execute it against foreign sovereign assets. When Does Immunity From Enforcement Arise? Immunity from enforcement can arise in three different scenarios: a) enforcement in England of an English judgment made against a foreign State; b) enforcement in England of a foreign judgment made against a foreign State within which there are two scenarios: (i) a judgment from State A against State A; or (ii) a judgment of State A against State B; and c) enforcement of an arbitral award, made in England or abroad, against a foreign State. Various principles and laws of sovereign immunity from enforcement have been developed for each of these situations, which need to be looked at together in order to provide a full understanding of the applicable principles. Case study The State of Rajatania entered into a contract with private English company Aluexploit Limited in 2010 for the purposes of aluminium mining in Rajatania. The agreement had a 50- year term but the parties rapidly fell into dispute and, in 2015, Aluexploit obtained a judgment from the Courts of New York against the State of Rajatania in the sum of US$100m. Aluexploit is now looking to enforce this judgment and believes there may be relevant assets of the State of Rajatania in England. Which Rules Apply? Chapter 2 sets out the English rules relating to enforcement of judgments in England generally, including the web of different regimes that may apply. Case study In relation to the judgment from New York against the State of Rajatania, the English common law would apply, as New York is not an EU Member State and England has no conventions with the USA in this regard. At common law, subject to certain qualifications (set out in chapter 2), a judgment of a foreign court is capable of recognition and enforcement in England. Aluexploit, as the judgment creditor, will have to commence proceedings in England to seek recognition and enforcement of the New York judgment. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

5 Enforcement Against State Parties in England Covington & Burling LLP Hurdle 1: State Immunity From Enforcement Jurisdiction The first question before the Court in enforcement proceedings against a foreign State is whether the State in question is immune to the enforcement proceedings themselves. At this stage, the foreign State is likely to raise the shield of immunity from jurisdiction, or more precisely, from enforcement jurisdiction. This issue arose in the case of AIC Limited v (1) The Federal Government of Nigeria, (2) The Attorney General of the Federation of Nigeria. 3 In that case, the Court found that the registration of the foreign judgment itself was an adjudicative act subject to the Court s discretion and that it attracted sovereign immunity, such that the rules under the SIA apply to recognition or enforcement proceedings. There are two (mutually exclusive) alternative regimes under which immunity from enforcement jurisdiction may fall to be considered: a) a regime that applies to recognition and enforcement of overseas Court judgments made against a State other than the United Kingdom or the State to which that Court belongs (i.e. a judgment from State A against State B). This regime arises under the Civil Jurisdiction and Judgments Act 1982 (the CJJA ) and is considered further below; or b) a regime that applies in all other cases (including English judgments or arbitral awards against foreign States), which will be considered first. The General Regime (Category (b)) The General Rule of Immunity From Jurisdiction With regard to immunity from enforcement jurisdiction, as with immunity from adjudication, States enjoy a general immunity from suit. 4 A State includes: (i) the sovereign or head of State; (ii) the three branches of government and other organs of the State; and (iii) any department of the government. It does not include a separate legal entity, distinct from the organs of the State. In relation to separate legal entities, the presumption flips, such that that entity does not have immunity and is capable of being sued, unless it is acting in exercise of sovereign authority and in circumstances where a State would have been immune. The SIA provides a few limited exceptions to the general rule. By providing these exceptions, English law adopts the doctrine of restrictive immunity, whereas many countries (including China, Russia and Portugal) still maintain a doctrine of absolute immunity (i.e. no exceptions). The Exceptions The SIA exceptions to immunity from jurisdiction are as follows: a) submission to the jurisdiction of the English Court; b) arbitration agreement; c) commercial transaction; and d) contractual obligation to be performed in England. The first two of these grounds are the most likely to be raised in the context of enforcement proceedings in England and are considered below (along with recent developments in relation to the third ground, commercial transaction). Exception: Submission A State is not immune from proceedings in respect of which it has submitted to the jurisdiction of the English Court. 5 The State may submit to jurisdiction after a dispute has arisen or by prior agreement. Submission by prior agreement or waiver of sovereign immunity must be clear. Under the SIA, an agreement in a transaction document that a contract will be governed by English governing law does not constitute submission to the jurisdiction of the English Court. Such agreement can be in writing (clearly setting out waiver of immunity and submission to the English Court) or by conduct. Agreement by conduct of the State includes the State commencing proceedings itself or taking an active part in proceedings brought against it, other than to claim sovereign immunity. For example, filing a Defence or bringing a counterclaim both constitute submission. Once a State has submitted, its submission is irrevocable. In the recent case of The High Commissioner for Pakistan in the United Kingdom v National Westminster bank plc, 6 Pakistan served a notice of discontinuance of proceedings to try to preserve sovereign immunity that it had waived by bringing an action. This was found to be an abuse of process and the notice was set aside. Exception: Arbitration Agreement Where a State has agreed to submit a dispute which has arisen, or may arise, to arbitration, it is not immune from any proceedings in the English Court that relate to the arbitration. 7 The question that arises in this context is whether enforcement proceedings can be said to relate to the arbitration, such that there is no immunity where proceedings are brought to enforce an arbitral award pursuant to an arbitration agreement. This question arose in Svenska Petroleum Exploration AB v Lithuania (No.2). 8 The Court of Appeal found that there was no basis for construing the SIA as excluding proceedings relating to the enforcement of a foreign arbitral award. As such, an agreement to arbitrate will constitute a waiver of immunity in respect of proceedings to enforce an award as well as any other related proceedings before the English Court. Two recent examples of such a situation can be seen in Gold Reserve Inc v The Bolivarian Republic of Venezuela, 9 handed down in February 2016 and L R Avionics Technologies Ltd v Federal Republic of Nigeria and anor, 10 handed down in July Exception: Commercial Transaction The ground that a State is not immune in proceedings relating to a commercial transaction entered into by the State is regarded as a key ground in resisting a claim to immunity from adjudication by a State generally. However, this ground has recently been found not to apply in the context of enforcement proceedings (see text box below, NML Capital Limited v Republic of Argentina). Rather, enforcement proceedings in relation to a foreign judgment are not proceedings relating to a commercial transaction, as they relate to the foreign judgment. This is consistent with AIC, a case in which the judgment creditor was trying to enforce a judgment obtained in the Nigerian Court against Nigeria itself (i.e. a judgment from State A against State A). The English Court found that the enforcement proceedings were immune within the meaning of section 1 of the SIA, as they related to the foreign judgment and not to the underlying transaction between AIC and the Nigerian government. All of this means that a State is likely only to be subject to English enforcement jurisdiction if it has submitted to its jurisdiction or agreed to arbitrate. A practical consequence of this position is that clearly and comprehensively drafted clauses to either effect are more important than ever. The CJJA Regime (Category (a)) There are alternative requirements that apply to recognition and enforcement of overseas Court judgments made against a State other 2 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

6 Enforcement Against State Parties in England Covington & Burling LLP than the United Kingdom or the State to which that Court belongs (i.e. a judgment from State A against State B). These requirements do not concern English judgments or arbitral awards against foreign States. This alternative scheme arises from section 31 of the CJJA, and provides that an overseas Court judgment will only be enforced against another foreign State if: a) it would be recognised and enforced if it had not been given against a State; and b) the foreign State would not have been immune if the foreign proceedings had been brought in the UK. The second limb involves the English Court examining whether the overseas Court had grounds to adjudicate the claim against the State, applying English rules. If none of the exceptions under the SIA listed above apply to the underlying claim, the judgment will not be enforced. Key case NML Capital Limited v Republic of Argentina 11 Sovereign bonds issued by Argentina in 2000 contained an express submission to the New York Court s jurisdiction and a waiver of sovereign immunity in respect of any Court enforcing a judgment. In 2001, Argentina declared a moratorium on all its debt, which led NML to seek payment of the principal amount of the bonds plus interest. NML successfully obtained a New York judgment in this regard. NML sought to enforce its New York judgment in the English High Court. The case came before the English Supreme Court. The Supreme Court held that Argentina was not entitled to state immunity in the enforcement proceedings. It held that section 3 of the SIA (the commercial transaction exception) does not extend to the enforcement of foreign judgments where the underlying subject matter is a commercial transaction. However, the submission clause amounted to a valid submission to the English Court and waiver of immunity, such that the English Court did have enforcement jurisdiction in relation to the enforcement proceedings. Case study Aluexploit s judgment against Rajatania falls to be considered under the CJJA regime, as it is a judgment of State A (New York) against State B (Rajatania). The New York Court would have had jurisdiction under the SIA on the basis that the underlying transaction is a commercial transaction and also on the basis of submission to the New York Court, as Rajatania s contract with Aluexploit contains a term submitting to the jurisdiction of the New York Court and providing that any judgment against it will be binding on it and expressly submitting to enforcement and execution proceedings in any Court to whose jurisdiction Rajatania could be subject. The judgment against Rajatania is one that would be recognised and enforced if it had not been given against a State and so the CJJA is no bar to recognition and enforcement proceedings. The English Court can therefore accept jurisdiction over Rajatania in relation to the enforcement proceedings and move on to Hurdle 2 Hurdle 2: State Immunity From Execution The General Rule of Immunity From Execution Having overcome the hurdle of establishing the jurisdiction of the English Court to hear the enforcement action (under either route outlined above), the next hurdle is identifying assets of the foreign State in England that are not protected by immunity from execution. The SIA provides that no relief may be granted against the foreign State by way of recovery of land or other property, and that the property of a State is not subject to any enforcement of a judgment. 12 These provisions protect State assets from execution action. The Exceptions The SIA enables execution against a State s assets in two situations, 13 namely: a) with the written consent of the State; or b) where the relevant property is in use or intended for use for commercial purposes. Exception: Consent to Enforcement This is often a difficult area for a party seeking to enforce. Only clear consent to enforcement will suffice. A clause submitting to the jurisdiction of the English Court may well not be enough to constitute consent to execution. Instead, clear consent to execution is required. This is most likely to involve an additional express reference to enforcement or execution against assets and/or waiver of immunity over property in the relevant clause. A good example of an effective waiver of immunity in respect of execution can be found in Donegal International v Republic of Zambia. 14 In that case, the Court accepted that the following waiver of immunity clause amounted to an effective consent to execution: if proceedings are brought against it or its assets in relation to the contract, no immunity from those proceedings (including without limitation, suit, attachment prior to judgment, other attachment, the obtaining of judgment, execution or other enforcement) will be claimed by or on behalf of itself or with respect to its assets (emphasis added). It is possible that consent to execution may be obtained at the enforcement stage, should the State be willing to comply with the judgment, though this is reasonably rare. The organ within the State which has authority to provide valid consent on behalf of the State to execution on a State asset is the head of the State s diplomatic mission in the United Kingdom, or the person performing his functions. 15 Case study Rajatania s contract with Aluexploit contains a term by which it expressly submits to enforcement and execution proceedings and waives immunity in any Court to whose jurisdiction Rajatania could be subject in that regard. This constitutes consent to enforcement. In addition, the contract provides that Rajatania waives its sovereign immunity defence for itself and for its property. This constitutes clear consent to execution over the State s property, which will allow the English Court to grant execution in relation to Rajatania s assets located in England. Exception: Property Used for Commercial Purposes State property used for commercial purposes will be available for enforcement even if that property is not connected to the dispute. But to execute an award or judgment against State-owned assets, those assets must be used or intended to be used exclusively for commercial purposes. Thus, if a bank account held in England by the foreign State is mixed because it is used for both the State s commercial transactions and also by its diplomatic mission, that bank account would not be considered to be used for commercial purposes within the meaning of section 13(4) of the SIA and will therefore be immune from execution. The SIA defines commercial purpose by reference to section 3(3), 16 i.e. as being for the purposes of commercial transactions in respect of which a State will not have immunity. However, it is important not to confuse the commercial purpose test of section ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

7 Enforcement Against State Parties in England Covington & Burling LLP 13(4), relating to exceptions to immunity from execution, with the commercial transaction test of section 3 relating to exceptions to immunity from jurisdiction. The commercial purpose test is very rarely met, as foreign States tend to place their assets held abroad in the hands of their diplomatic missions or central banks (both considered further below). The limits of this rule are well-illustrated by the case of SerVaas Incorporated v Rafidian Bank and others. 17 SerVaas obtained a judgment in Iraq which it sought to enforce in England. Rafidian Bank (which had a branch in London) held large sums on behalf of Iraq, which SerVaas claimed had been acquired through commercial transactions between the bank and its creditors and so were available for enforcement. The question before the Court was whether the sums held by Rafidian Bank were in use, or intended for use, for commercial purposes, such that there would be no immunity from enforcement. The Supreme Court found that immunity prevailed, on the basis that it was not the origin of the property that was important, but the present and future use of the property. Although the funds were held by the bank, their future use was for the specially created and UNbacked Development Fund of Iraq, which was sovereign in nature, not commercial. A recent illustration of this rule was seen in the case of L R Avionics. 18 L R Avionics brought proceedings to enforce a judgment of the Nigerian Federal Court (together with an arbitration award) made against Nigeria. L R Avionics was granted permission to register the Nigerian judgment in England and it subsequently obtained a final charging order in respect of premises located in London, which were owned by Nigeria. The London premises were leased to a company for the purpose of providing Nigerian visa and passport services, amongst other things. Nigeria applied to set aside the charging order on the basis that the property was immune from enforcement. It was accepted that the use by a State of its own premises to carry out consular activities such as providing visa and passport services, could not be said to be a use for commercial purposes within the meaning of section 13(4) of the SIA. However, the Court had to consider the position if, instead of handling the applications itself, the State had granted a lease of the premises to a privately owned company, to which the processing services were outsourced. The Court found that the London premises were not being used for commercial purposes within the meaning of section 13(4). This was because, instead of processing the applications itself, the task had simply been outsourced by the State. The property was therefore being used for a consular activity which, even if outsourced, could only be carried out on the State s behalf. The commercial purpose exception allowing execution over State property is even narrower where the foreign State is party to the European Convention on State Immunity Under that Convention, the exception will only be available where two conditions are met: (1) the foreign judgment to enforce is final (i.e. not subject to appeal); and (2) the foreign State has made a declaration 19 generally agreeing to enforcement proceedings within the territories of other State parties. 20 Separate Legal Entities Where a separate legal entity (i.e. an entity distinct from the executive organs of the government) is immune from jurisdiction under the rules described above but submits to jurisdiction, it is immune to enforcement action, subject to the same exceptions as applicable to States (i.e. written consent or commercial purposes). Special Cases Diplomatic Property Immunity from execution of assets held by a diplomatic mission arises out of the Diplomatic Privilege Act 1964 and is conferred upon a wide range of assets. Embassies, goods and monies held in banks on account for the diplomatic mission will attract immunity and as such will generally be unavailable for enforcement, and the exceptions to immunity provided by the SIA will not apply. Central Banks Sovereign assets located abroad are often held in the name of the Central Bank of that State and this acts as a bar to enforcement against these assets. A Central Bank is given absolute immunity under English law, 21 subject only to the exception of written consent of the Central Bank. This was put beyond doubt in AIC, (where the question for the Court was whether funds in a bank account in the name of a Central Bank 22 were liable to execution if those funds were used or intended for use for commercial purposes. 23 The Court held that even where the use of the funds would be commercial, property of a Central Bank should not be subject to execution; in other words, the protection afforded to Central Banks trumps the commercial purpose exception. This was considered and applied recently in (1) Thai-Lao Lignite (Thailand) Co. Ltd, (2) Hongsa Lignite (Lao PDR) Co. Ltd v Government of the Lao People s Democratic Republic, The Bank of the Lao People s Democratic Republic, 24 in which Thai-Lao had secured an arbitral award which it sought to enforce in England, and successfully obtained a freezing order against Laos over assets held by its Central Bank in England. Laos then applied to have the freezing order set aside on the grounds that it enjoyed sovereign immunity over those assets. The Court found that freezing accounts in the name of the Central Bank should not have been granted, as the funds benefitted from State immunity. As the funds were the property of the Central Bank, they were afforded special protection, 25 and no exception to State immunity applied in this instance. Case study Under a separate contract with Aluexploit, Rajatania has not consented to execution and so Aluexploit is seeking to rely on the commercial purpose exception. It has identified (a) a Rajatanian embassy building in London, (b) a yacht used by Rajatania government officials, and (c) a bank account in the name of Rajatania s Central Bank. Can it enforce against these assets? (a) A Rajatanian embassy building in London this would be immune under the Diplomatic Privilege Act (b) A yacht used by Rajatania government officials the purposes for which the yacht is used would be examined, but unless these are commercial, the yacht would not be available for execution. (c) A bank account in the name of Rajatania s Central Bank these are not available even if used for commercial purposes, on the basis of AIC. Debts of the Foreign State Held by a Third Party Enforcing against a debt owed to a State by a third party located in England (usually a bank) has proved to be a common method to obtain reparation. This was the case in Servaas described above. This process of execution is known in England as a third party debt order (or TPDO ) and is provided for by Rule 72 of the Civil Procedural Rules (it used to be called a garnishee order ). When applying for a TPDO, the judgment creditor is in effect seeking to obtain monies held by a private party the bank but belonging to 4 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

8 Enforcement Against State Parties in England Covington & Burling LLP the State. When granted by the Court, a TPDO will require the bank owing the debt to pay the judgment creditor instead of the creditor/ State, and will discharge the bank of its obligation to pay the State. The Court will only allow enforcement through TPDO where the monies are in England and where the exceptions under the SIA regarding jurisdiction and execution immunity are met. In Société Eram Ltd v Compagnie Internationale de Navigation 26 the House of Lords rejected an application for a TPDO on the basis that the debt was in fact sited in Hong Kong. Conclusion State Immunity in a Nutshell Immunity from enforcement involves a strict regime in favour of States. It can be a significant hurdle to enforcement. As with any potential enforcement issue, it is essential to consider the issue and confront it at the outset of litigation, to avoid the risk of a Pyrrhic victory. There are two stages to the immunity question in enforcement of an overseas Court judgment in England: immunity from enforcement jurisdiction and immunity from execution. A judgment creditor must be able to overcome both to enforce successfully in England. Good drafting is critical. Alleged consent or submission in advance by the State is often central to State immunity issues but each such clause must be carefully analysed for its application to both limbs of immunity to execution. Submission for one purpose does not necessarily constitute submission for the other purpose. A judgment creditor needs to investigate carefully what assets of the State exist and whether they are likely to be available for execution. The number of cases coming before the English Court on these issues are testament to how difficult enforcement against a State can be and how hard-fought these issues are, but they also reveal some significant successes on the part of judgment creditors. Endnotes 1. Drawn up within the Council of Europe and ratified by England. 2. Not yet implemented in UK law. 3. [2003] EWHC 1357 (QB). 4. Section 1 of the SIA. 5. Section 2(1) of the SIA. 6. [2015] EWHC 55 (Ch). 7. Section 9 of the SIA. 8. [2007] QB [2016] EWHC 153 (Comm). 10. [2016] EWHC [2011] UKSC Section 13 of the SIA. 13. Section 13(3) (4). 14. [2007] EWHC 197 (Comm). 15. Section 13(5) of the SIA. 16. Section 17 of the SIA. 17. [2011] EWCA Civ [2016] EWHC Under Article 24 of the Convention. 20. Article 26 of the Convention. 21. Section 14(4) of the SIA. 22. Falling within section 14(4) of the SIA. 23. Falling within the exception to immunity under section 13(4) of the SIA. 24. [2013] EWHC Under section 14(4) of the SIA. 26. [2003] UKHL 30. Acknowledgment The authors are indebted to Juliette Huard-Bourgois for all her assistance. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

9 Enforcement Against State Parties in England Covington & Burling LLP Louise Freeman Covington & Burling LLP 265 Strand London WC2R 1BH United Kingdom Tel: URL: Chloé Bakshi Covington & Burling LLP 265 Strand London WC2R 1BH United Kingdom Tel: URL: Louise Freeman specialises in complex commercial disputes. She advises investment banks, international corporate groups, asset managers and credit rating agencies, particularly in the financial services and private equity sectors. She advises on all forms of financial markets disputes, including mis-selling claims, asset management disputes, inter-creditor issues and ISDA-related disputes. She also advises clients on jurisdiction and enforcement issues, with emphasis on strategic considerations. She also represents parties in significant competition litigation proceedings, including the pioneering synthetic rubber cartel damages action, which was awarded as a standout competition matter by the FT s Innovative Lawyers 2015 and listed as one of the Lawyer s Top 20 cases of Louise has been recommended in The Legal and 2015, including for banking litigation (where she is noted to be an experienced adviser ), competition litigation (where she receives praise from clients) and commercial litigation (where she is said to be one of London s most effective partners ). Chloé Bakshi is an Associate in the Dispute Resolution team at Covington & Burling LLP. Chloé represents clients in a broad range of international, commercial disputes, handling both international arbitration and litigation matters. She has experience advising clients in a variety of sectors, including banking, oil and gas and insurance. She has advised companies and high-net-worth individuals from a variety of jurisdictions including Russia and other CIS countries, the United States, Switzerland, the British Virgin Islands and Cyprus and many of her matters span multiple jurisdictions. Chloé has particular experience in handling commercial arbitrations under the rules of leading arbitral institutions such as the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA) as well as handling ad hoc arbitrations under the Arbitration Act She also has experience of making applications to the English High court in support of arbitral proceedings. Chloé has also handled numerous commercial fraud and asset tracing matters and has advised clients under investigation by the Serious Fraud Office (SFO) and Securities and Exchange Commission (SEC). In an increasingly regulated world, Covington & Burling LLP helps clients navigate their most complex business problems, deals, and disputes. Founded in 1919, the firm has more than 850 lawyers in offices in Beijing, Brussels, London, Los Angeles, New York, San Francisco, Seoul, Shanghai, Silicon Valley, and Washington. 6 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

10 Chapter 2 European Union Sébastien Champagne Jones Day Vanessa Foncke 1 Overview of European Recognition and Enforcement Instruments Instrument Relevant Jurisdiction(s) Application Ratione Materiae Application Ratione Temporis Recast Brussels I Civil and commercial matters, irrespective of the nature of the court or tribunal. Excluded subject matters: Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Brussels I Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. (Revised) Lugano Convention Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30 October 2007 (replacing the preceding Convention of 16 September 1988). All countries within the EU. All countries within the EU. Switzerland, Norway and Iceland. Denmark, via the Agreement between the European Union and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 19 October 2005 that is identical to Brussels I. All countries within the EU. Switzerland, Norway and Iceland. 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 obligations arising by reason of death. See Recast Brussels I above, except that liability of the State for acts and omissions in the exercise of State authority and maintenance obligations from a family relationship, parentage, marriage or affinity are not explicitly excluded subject matters. See Brussels I above. Legal proceedings instituted on or after 10 January Legal proceedings instituted before 10 January 2015 and after 1 March 2002 (and after 1 July 2007 for Denmark). Recognition and enforcement 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 For cases arising before those dates of entry into force, the Lugano Convention of 1988 continues to apply. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

11 Jones Day European Union Instrument Relevant Jurisdiction(s) Application Ratione Materiae Application Ratione Temporis ESC Regulation Regulation (EC) No. 861/2007 of 11 July 2007 establishing a European Small Claims Procedure (as amended by Regulation (EU) 2015/2421 of 16 December 2015). EOP Regulation Regulation (EC) No. 1896/2006 of 12 December 2006 creating a European order for payment procedure (as amended by Commission Regulation (EU) No. 936/2012 of 4 October 2012 and by Regulation (EU) 2015/2421 of 16 December 2015). EEO Regulation Regulation (EC) No. 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims. All EU Member States, except Denmark. All EU Member States, except Denmark. 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 irrespective 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. 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 matrimonial 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. 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 admission of the claims or the facts alleged by the creditor under the laws of the Member State in which the judgment was given; or d) expressly agreed to the claim in an authentic instrument. Excluded subject matters: revenue, customs or administrative matters, liability of the State for acts and omissions in the exercise of State authority; and the status or legal capacity of natural persons, rights in property arising out of matrimonial relationships, wills and succession, bankruptcy or analogous proceedings, social security or arbitration. Legal proceedings instituted on or after 1 January The amendments by Regulation (EU) 2015/2421 will enter into force on 14 July 2017 (also see section 3 below). Legal proceedings instituted on or after 12 December The amendments by Regulation (EU) 2015/5421 will enter into force on 14 July 2017 (also see section 3 below). Legal proceedings instituted on or after 21 October ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

12 Jones Day European Union Instrument Relevant Jurisdiction(s) Application Ratione Materiae Application Ratione Temporis Hague Convention Convention of 30 June 2005 on Choice of Court Agreements. NY Convention Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. The EU, except for Denmark. Mexico. Singapore. The United States and Ukraine have signed the Hague Convention but have not yet ratified it. All countries signatory to the 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 employment 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 immovable property, validity, nullity or dissolution 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. The recognition and enforcement of arbitral awards rendered in another State than the one where recognition or enforcement is sought. Entry into force on 1 October 2015 (and on 1 October 2016 for Singapore). Entry into force on 7 June 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 under 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) of the 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 separate 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 recognition of judgments within its field of application (see Chapter 3 of the 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 declaration of enforceability ) (Articles 38 Brussels I and Lugano Convention). Once the exequatur procedure has been successfully completed, the judgment will be enforced in the Member State in which enforcement is sought in the same way as any 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) of the ESC Regulation, Article 5 of the EEO Regulation and Article 19 of the EOP Regulation judgments are enforceable as such, without the need for a prior exequatur (as is the case for judgments under Recast Brussels I). By declaring a judgment enforceable, a national court grants the same value to that foreign judgment as a domestic enforceable 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 section 2.2 above, Recast Brussels I continues the tradition of de plano recognition of foreign judgments and in addition no longer requires an exequatur. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

13 Jones Day European Union 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 aforementioned 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 competent 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 authorities of the Member State in which enforcement is sought (Article 20 (2)). As referenced in section 1, an exequatur is also not required under the EEO Regulation in order to obtain enforcement. The recognition of the EEO cannot be challenged under this procedure (Article 5). Finally, the enforcement procedure as such is here 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 enforcement 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 possibility 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)). Here as well, 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 State of enforcement unless the Hague Convention provides otherwise. The documents to be produced in the context of these procedures under the Hague Convention 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 as such, a certified 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 judgment 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 judgment 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 (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 of Recast Brussels I, recognition and enforcement shall be refused, upon the opposing party s application (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 instituted 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) it 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 10 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

14 Jones Day European Union e) the judgment conflicts with specific provisions of Recast Brussels I on jurisdiction in matters relating to insurance, consumer contracts or individual employment contracts and on exclusive jurisdiction (Articles 10 24). Under Brussels I and the Lugano Convention (Articles 34 35), recognition shall be refused based on the above-referenced 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 disappeared under the Recast Brussels I because, as mentioned, the exequatur procedure has been abandoned as a requirement for enforcement of foreign judgments. An EOP, a judgment given in a Member State in the ESC procedure or certified as an EOO is 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 irreconcilable 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 objection 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, opposition can be lodged against the EOP in accordance with Articles of the EOP Regulation. Similarly an application for rectification or withdrawal can be filed under Articles 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 this Article 18 is amended as of 14 July 2017 by Regulation (EU) 2015/2414). Whether an appeal is available against a judgment given in the ESC Procedure will depend of 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: 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 equivalent 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 notification 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 principles 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 incompatible 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 section 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 is sought of a judgment 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 enforcement on the grounds referred to above in section 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 considered from a purely domestic point of view, but is more limited and to be interpreted as an 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 question 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. 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 the 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 As stated in Chapter 1 above, both the ESC and EOP Regulations were amended by Regulation (EU) 2015/2414. The main amendments consist in (i) raising the ceiling for small claims under the ESC Regulation from 2,000 to 5,000, and (ii) the inclusion of court settlements in the scope of the ESC Regulation. Furthermore, amendments have been made regarding the exceptional nature of an oral hearing, the use of modern communication technology, court fees and the review of a judgment in exceptional cases. The amendments to the EOP Regulation mainly concern the effect ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

15 Jones Day European Union of lodging an opposition. All amendments to the ESC and EOP Regulations will enter into force as of 14 July On 13 April 2016, the Council of the European Union authorised negotiations on a Convention on the recognition and enforcement of judgments in civil and commercial matters (the Judgments Convention ) in the framework of the Hague Conference on Private International Law. The first meeting of a Special Commission to prepare a draft Convention took place in June 2016 and a second meeting is expected to take place from 16 to 24 February The future Judgments Convention is intended to be a complementary Convention to the (Choice of Court) Hague Convention. Finally, on 23 June 2016 the United Kingdom (UK) voted through a national referendum to leave the European Union. The concrete effects of the so-called Brexit for the recognition and enforcement of UK judgments in Europe and of European judgments in the UK will depend on the negotiations that are to take place in the upcoming years. Given that the UK ratified the 1958 New York Convention, there should be no change in the recognition and enforcement of arbitral awards after Brexit. Sébastien Champagne Jones Day Regentschapsstraat Brussels Belgium Tel: schampagne@jonesday.com URL: Vanessa Foncke Jones Day Regentschapsstraat Brussels Belgium Tel: vfoncke@jonesday.com URL: Sébastien Champagne is a partner in the Global Dispute practice of Jones Day s Brussels Office. He focuses on domestic and crossborder litigation, representing clients in complex commercial disputes, trade practice and product liability disputes, as well as in regulatory and competition disputes. He regularly 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 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. Vanessa Foncke is a partner in the Global Dispute practice of Jones Day s Brussels Office. She practises in all aspects of dispute resolution and contract negotiations. Her experience covers the representation of Belgian and foreign clients in a broad range of contractual and commercial disputes in all stages of court and administrative proceedings, and she also conducts internal compliance investigations. Vanessa Foncke also has extensive experience in domestic and international commercial arbitration both as counsel and arbitrator. Vanessa is the co-chair of CEPANI40, the under-40 association of the Belgian institution for arbitration and mediation CEPANI. She is recommended for dispute resolution in the 2015 edition of The Legal 500 EMEA. Vanessa is a graduate of Ghent University (J.D. magna cum laude) and Columbia University (LL.M. James Kent Scholar; Fulbright Scholar; B.A.E.F. Honorary Fellow). She is a member of the Flemish section of the Brussels Bar. Established in 1989, Jones Day s Brussels Office advises clients on a wide range of regulatory, corporate/commercial, litigation and arbitration, tax, international trade, and labour law issues relevant to corporations doing business in Belgium, the EU, and worldwide. Our team of over 50 lawyers is qualified in major jurisdictions in Europe and worldwide. Strategically located at the centre of the European Union, the Brussels Office is part of Jones Day s network of 10 European offices, including two offices opening in recent years in Amsterdam and Düsseldorf. Jones Day is a global law firm with 44 offices in major centres of business and finance throughout the world. Its unique governance system fosters an unparalleled level of integration and contributes to its perennial ranking as among the best in the world in client service. Jones Day provides significant legal representation for almost half of the Fortune 500, Fortune Global 500, and FT Global ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

16 Chapter 3 Australia Beverley Newbold MinterEllison Tamlyn Mills 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 Trans-Tasman Proceedings Act 2010 (Cth) 2 General Regime Relevant Jurisdiction(s) Corresponding Section Below New Zealand Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Statutory Regime There is a statutory regime for the recognition and enforcement of certain foreign judgments in Australia under the Foreign Judgments Act 1991 (Cth) (the FJA). The FJA provides a national regime for the recognition and enforcement of foreign judgments in Australia, avoiding the need to bring a common law action. The statutory regime applies on the basis of substantial reciprocity to the judgments of the superior courts (and specified inferior courts) of the jurisdictions specified in the Foreign Judgments Regulations 1992 (Cth). The statutory regime currently applies to the following jurisdictions: 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, United Kingdom and Western Samoa. There are some notable omissions from the scope of the FJA, including the USA, China and India. Accordingly, it is necessary to consider both the statutory regime and the enforcement of foreign judgments at common law. Common Law Where the FJA does not apply, foreign judgments in Australia must be enforced under the common law principles for the enforcement of foreign judgments. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Statutory Regime In order to be recognised and enforced under the FJA, a judgment must be: for payment of a sum of money; and final and conclusive. A judgment can still be considered final and conclusive if it is subject to an appeal. However, the Australian court may stay enforcement of the judgment if it is satisfied that the judgment debtor has appealed or intends to appeal (expeditiously) against the judgment. The FJA applies to both final and interlocutory orders in civil proceedings. With the exception of New Zealand and Papua New Guinea tax matters, the FJA does not apply to amounts payable in respect of taxes, fines or other penalties. However, judgments in criminal proceedings for the payment of compensation or damages to an injured party fall within the statutory regime. While the operation of the FJA may theoretically be extended to prescribed non-money judgments, no provision currently exists for the enforcement of non-money judgments from the courts of any country. A foreign judgment cannot be registered if, at the date of the application: it has been wholly satisfied; or it could not be enforced in the country in which it was made. An authenticated copy of the judgment and, if the judgment is not in English, a certified translation, are required to be provided with an application for registration under the FJA. Common Law Four conditions must be satisfied for a foreign judgment to be recognised and enforced at common law: the foreign court must have exercised an international jurisdiction that Australian courts recognise; the judgment must be final and conclusive; the parties must be the same; and the judgment must be for a fixed sum (although certain nonmoney judgments may be enforceable in equity). Jurisdiction The question of jurisdiction is not determined by reference to the rules of the foreign court. The question is whether the foreign court exercised a jurisdiction recognised under Australian conflict of laws rules. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

17 MinterEllison Australia Australia Traditionally, the jurisdiction of the foreign court over the judgment debtor can arise by the presence or residence of the judgment debtor in the foreign jurisdiction (for example, where the defendant was personally served with the originating process while physically present in the jurisdiction) or by the voluntary submission of the defendant to that jurisdiction (for example, by appearing as a party in the proceedings or consenting to jurisdiction through a contractual clause). However, section 11 of the FJA, which applies to enforcement actions brought at common law, provides that a foreign court does not have jurisdiction merely because the judgment debtor appeared or participated in proceedings to the extent necessary to: protect or obtain the release of property seized or threatened with seizure in the proceedings; contest the jurisdiction of the court; or invite the court in its discretion not to exercise its jurisdiction in the proceedings. Final and conclusive The key test for finality is whether the foreign court treats the judgment as res judicata of the disputed issues. The existence or availability of an appeal does not affect the finality of a foreign judgment although the Australian court may stay enforcement of the judgment pending the outcome of the foreign court appeal. Identity of the parties The parties to the enforcement proceedings must be the same as those in the foreign judgment. Where a foreign judgment is made against several defendants, enforcement proceedings may be brought against any or all of them in an Australian court. Type of judgments that may be enforced Enforcement of foreign judgments at common law is only available for judgments for the payment of a fixed or readily calculable sum of money. However, enforcement of certain non-money judgments may be available in equity (see, for example, White v Verkouille [1990] 2 Qd R 191; Davis v Turning Properties Pty Ltd (2005) 222 ALR 676; Independent Trustee Services Ltd v Morris (2010) 79 NSWLR 425). 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Statutory Regime The FJA provides for enforcement by registration. Registration is akin to recognition. Once registered, a foreign judgment can be enforced in the same way as a judgment of the relevant Australian court. Common Law The foreign judgment must be made a judgment of a local Australian court as a prerequisite to enforcement. A judgment creditor seeking enforcement of a foreign judgment at common law must commence fresh proceedings in an Australian court for the judgment debt. The judgment of the Australian court in those proceedings is then enforceable in the same way as any other Australian judgment. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Statutory Regime A judgment creditor who has obtained a judgment from a relevant court in a country to which the FJA applies can apply to the Supreme Court of any Australian State or Territory for registration of the judgment (the Federal Court of Australia has jurisdiction in respect of New Zealand Commerce Act proceedings). 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 and Territories. The rules for each State and Territory court prescribe the formal requirements for an application for registration and the evidence that must be filed in support. This means the procedure for recognition and enforcement varies between Australian jurisdictions. 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. An application for registration can be made ex parte, as there is no requirement to give notice to the judgment debtor under the FJA or any of the applicable court rules. If the requirements of the FJA are satisfied, the court must order that the judgment be registered. The judgment creditor is then required 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 registration 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. Evidence of service of the notice of registration is required before the judgment creditor can take steps to enforce the judgment. Common Law To enforce a foreign judgment at common law, the judgment creditor must bring a fresh action in the appropriate Australian court. There are two bases for a common law action to enforce a foreign judgment. First, the judgment creditor can sue for the judgment amount as a debt in an Australian court. Alternatively, or in addition, the judgment creditor may bring an action in an Australian court on the original cause of action for which judgment was obtained in the foreign court. The judgment creditor can then rely on the foreign judgment as creating an estoppel which prevents 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. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Statutory Regime After a foreign judgment has been registered, the judgment debtor can apply to the Supreme Court in which the judgment was registered to have the registration set aside. The court in which the foreign judgment is registered must specify the period within which such an application can be made. If the judgment debtor can satisfy the court of one of the following matters, 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; the judgment was registered in contravention of the FJA; the courts of the country of the original court had no jurisdiction in the case; if the judgment debtor was the defendant in the proceedings in the original court, that the judgment debtor did not receive 14 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

18 MinterEllison Australia 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 by whom the application for registration was made; the judgment has been discharged; the judgment has been wholly satisfied; or enforcement of the judgment would be contrary to public policy. Section 7(3) of the FJA sets out when the foreign court is deemed to have jurisdiction. If the judgment debtor can satisfy the court 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, the court has a discretion whether to set aside registration of the judgment. If registration is set aside on the basis that the judgment was registered for an amount greater than the amount payable under it at the date of registration, the judgment creditor can apply for reregistration. If registration is set aside solely on the basis that it was not enforceable in the country of the original court at the date of the application for registration, the judgment creditor can apply for reregistration if and when the judgment becomes enforceable in that country. Common Law A final and conclusive money judgment made by a court having jurisdiction recognised by the Australian courts is prima facie entitled to enforcement in Australia. A judgment debtor cannot raise in proceedings for the recognition and enforcement of a foreign judgment in Australia a defence that was or could have been raised in the foreign proceedings. Accordingly, there are limited grounds on which a judgment debtor can resist the recognition and enforcement of a foreign judgment at common law. There are four recognised defences in a common law action to enforce a foreign judgment: the foreign judgment was obtained by fraud; the foreign judgment is contrary to public policy; 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). These defences must be raised by the judgment debtor in the common law action seeking recognition and enforcement of the foreign judgment. 2.6 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 liquidated sum. There may be specific rules for the recognition and enforcement of judgments in rem, being judgments that affect the status of a person or property, for example under bankruptcy, corporations or family law provisions. The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) applies specifically to anti-trust proceedings in foreign courts and gives the Australian 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. 2.7 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 Regime (a) The 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. (b) 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(a) of the FJA). This applies whether or not the foreign judgment is, or can be, registered under the FJA. This rule 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 jurisdiction in the case; if the judgment debtor was the defendant in the proceedings 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 enforcement of the judgment would be contrary to public policy. Common Law (a) If there is a conflict between a foreign judgment and an earlier judgment of an Australian court on the same matter and between the same parties, the local judgment will be preferred. (b) A foreign judgment which has been satisfied can be relied on as creating a cause of action estoppel in any local Australian proceedings pending in relation to the same parties on the same cause of action. For a foreign judgment to be relied on as a bar to local proceedings, the parties must be identical and the causes of action and heads of damage recoverable the same. However, it is not necessary that the applicable law be the same or that the foreign proceedings were instituted before the local proceedings commenced. A foreign judgment can also be relied on by way of issue estoppel to prevent the reopening of an issue that has been previously litigated between the same parties. For an issue estoppel to arise, the following requirements must be met: the same question has been decided; the decision was final; and the parties to the decision were the same as the parties to the proceeding in which the estoppel is raised. 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. Australia ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

19 MinterEllison Australia Australia 2.8 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? Conflicting local law or prior judgment on the same or similar issue between different parties is not a basis on which registration of a foreign judgment can be set aside under the FJA. Australian courts have applied the principle enunciated by Justice Blackburn in Godard v Gray (1870) LR 6 QB 139 that a foreign judgment cannot be refused recognition and enforcement on the basis that the foreign court mistook either the facts or the law. Accordingly, the fact that an Australian court would have decided the case differently is not grounds for refusing recognition and enforcement at common law. Of course, recognition and enforcement 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. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? Generally, the limitation period for action upon a judgment is 12 years from the date on which the judgment becomes enforceable in the place where judgment was given: (section 10(4)-(4A) Limitation of Actions Act 1974 (Qld); section 17 Limitation Act 1969 (NSW); section 4(4) Limitation Act 1974 (Tas); section 14 Limitation Act 1985 (ACT); and section 15 Limitation Act (NT)). A longer period of 15 years applies in Victoria and South Australia (section 5(4) Limitation of Actions Act 1958 (Vic) and section 34 Limitation of Actions Act 1936 (SA)). There is no specific limitation period prescribed in Western Australia for an action to enforce a judgment. The general limitation period is six years from the time the cause of action accrued (section 13 Limitation Act 2005 (WA)). 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? No special rules apply where a foreign judgment purports to apply Australian law. Because Australian courts will not refuse recognition and enforcement of a foreign judgment based on an error on the merits, the fact that a foreign court has applied Australian law is not a basis for refusing recognition and enforcement of the judgment even if an Australian court would have reached a different result Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. The FJA provides a national regime for the recognition and enforcement of the foreign judgments to which it applies. However, the Act leaves the court rules of Australia s State and Territory Supreme Courts free to prescribe the formal requirements for an application for registration and the matters to be proved on an application for registration. This means that the rules and procedure for recognition and enforcement do vary between Australian States and Territories. Similarly, at common law the doctrine of precedent means that decisions of the courts in one State or Territory are not binding on the courts of another State or Territory. This has potential to lead to divergence in the common law principles applicable to the enforcement of foreign judgments between jurisdictions in the absence of binding High Court (Australia s highest court) authority What is the relevant limitation period to recognise and enforce a foreign judgment? Statutory Regime The limitation period for an application for registration of a foreign judgment under the FJA is six years from the date of judgment or, if the judgment has been appealed, the date of the last judgment in the appeal proceedings (section 6(1) of the FJA). Common Law The 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. The Trans-Tasman Proceedings Act 2010 (Cth) deals with the recognition and enforcement in Australia of specified judgments of New Zealand courts and tribunals. To be enforceable under the Act, a New Zealand judgment must be a registrable NZ judgment (see section 66). In general terms, a judgment must be final and conclusive and be: given in a civil proceeding by a New Zealand court; given in a civil proceeding by a New Zealand tribunal prescribed by the Trans-Tasman Proceedings Regulation 2012 (Cth) and of a particular kind prescribed; given in a criminal proceeding by a New Zealand court and (i) wholly consist of a requirement to pay an injured party a sum of money by way of compensation, damages or reparation, or (ii) wholly consist of an imposition of a regulatory criminal fine and meet the conditions prescribed in the Regulation; or registered in a New Zealand court under the Reciprocal Enforcement of Judgments Act 1934 (New Zealand) (section 66). The Act also applies to a certain proceedings in the High Court of New Zealand arising under the Commerce Act 1986 (New Zealand) and certain orders for the payment of expenses to witnesses (section 66(1)(e) and section 85(2)). Specific types of judgments are excluded from the operation of the Act, for example orders under proceeds of crime legislation or orders relating to guardianship or child welfare (section 66(2)). An authenticated copy of the New Zealand judgment must be filed at the relevant Australian court with an application for registration. 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? The Trans-Tasman Proceedings Act provides a regime for the registration of New Zealand judgments in an Australian court. Once registered, the judgment has the same force as an Australian judgment and can be enforced as if the judgment had been given by an Australian court ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

20 MinterEllison Australia 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. A judgment creditor seeking to enforce a New Zealand judgment under the Trans-Tasman Proceedings Act must make an application for registration in the form required by the Trans-Tasman Proceedings Regulation An Australian court must, on an application under section 67 of the Act, register the New Zealand judgment. The judgment creditor must then serve a notice of registration within 15 working days after registration. An application for registration must be made within six years after the day the judgment was given or the day of the last judgment in any appeal proceedings. A registered New Zealand judgment can be enforced in Australia as soon as notice of registration is given. The judgment creditor does not need to wait until the period for applying to set aside registration has expired. However, if notice of registration has not been given, the judgment creditor cannot take steps to enforce the judgment for a period of 45 working days. The judgment debtor can apply to the court for a stay of enforcement within 30 days after notice of the registration. A stay will only be granted on condition that the judgment debtor apply to set aside, vary or appeal the judgment in New Zealand within a specified time and that the application be pursued expeditiously. 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 of a New Zealand judgment under the Trans-Tasman Proceedings Act must be set aside if: the court is satisfied that 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, if 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. A New Zealand judgment can only be enforced in Australia if it is capable of being enforced in New Zealand. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? For the purposes of enforcement, once a foreign judgment is registered pursuant to the FJA or becomes a judgment of the local court in a common law action, the judgment has the same force and effect as a local judgment and may be enforced in the same way. Each State or Territory s court rules provide a statutory regime for the enforcement of judgments. Generally, to enforce a judgment in Australia, the judgment creditor must make an application to the court for enforcement. In some jurisdictions, this is known as an application for an enforcement warrant or an enforcement order. Enforcement orders able to be made include: (a) an order for the seizure and sale of real and personal property in which the judgment debtor has an interest; (b) a garnishee order; (c) an instalment order authorising the satisfaction of the judgment debt in instalment payments; (d) a charging order against the judgment debtor s interest in any stocks, shares, bonds, debentures, etc.; (e) money in court and stop orders; (f) an order appointing a receiver; (g) committal of the judgment debtor; or (h) 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 December 2015, the High Court of Australia handed down its decision in Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43. The case concerned the appellant s efforts to have a judgment against the Republic of Nauru made in Japan recognised and enforced in Australia under the FJA. Nauru sought to rely on its entitlement to foreign State immunity under the Foreign States Immunities Act 1985 (Cth). In summary, the High Court held that proceedings for registration of a foreign judgment under the FJA are proceedings to which the Immunities Act applies but, in this case, the exception for commercial transactions applied because the foreign judgment was based on an underlying commercial transaction. However, Nauru was found to be immune from enforcement against its property in Australia because the purposes for which the bank accounts in issue were in use were held not to be commercial purposes. The case is notable for its consideration of the interaction of the Immunities Act with the FJA. 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 award in Australia should be aware of the distinction between the statutory regime, the common law regime 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. Australia ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

21 MinterEllison Australia Beverley Newbold MinterEllison Level 40 Governor Macquarie Tower 1 Farrer Place Sydney Australia Tamlyn Mills MinterEllison Level 40 Governor Macquarie Tower 1 Farrer Place Sydney Australia Australia Tel: beverley.newbold@minterellison.com URL: Beverley Newbold is MinterEllison s Head of International Disputes. She is a recognised litigator and dispute resolution specialist dealing in international and large domestic corporate disputes, class actions, and regulatory and compliance investigations. Recent major proceedings include representing Qantas in Federal Court proceedings against Rolls Royce over the headline Airbus A380 engine failure. In the class action space, she acted for Billabong International Limited in a class action brought by shareholders; for MFS group non-executive directors in a class action brought by unit holders; and also acted for Qantas in a class action brought by travel agents. 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 a Masters of Law in International Business Regulation, Litigation and Arbitration from New York University. Tel: tamlyn.mills@minterellison.com URL: Tamlyn Mills is an experienced commercial litigator who has acted in complex and large-scale litigation in the Federal Court of Australia, the Queensland Supreme Court and the New South Wales Supreme Court for both public and private sector clients across a range of industry sectors, including energy and resources, construction, property, agriculture, health and government. In addition to court proceedings, Tamlyn also has experience advising clients on various alternative dispute resolution processes, including mediation, arbitration and expert determination. Tamlyn specialises in arbitration, alternative dispute resolution and international disputes. She holds a Master of Laws with Distinction from the London School of Economics and Political Science where her studies focused on international commercial arbitration, international dispute resolution and ADR. Tamlyn is a member of the MinterEllison Trade Law Group and International Dispute Resolution Group. 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 government 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

22 Chapter 4 Austria Maximilian Raschhofer Schönherr Rechtsanwälte GmbH Sebastian Lukic 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 Austrian Enforcement Act (Exekutionsordnung, hereinafter EA ) Austrian Insolvency Act (Insolvenzordnung, hereinafter IA ) Austrian Act on Non- Contentious Matters (Außerstreitgesetz, AußerstreitG ) Hague Convention on Civil Procedure of 1 March 1954 Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 Hague Convention concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations towards Children of 15 April 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 Convention concerning International Carriage by Rail of 9 May 1980 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 Relevant Jurisdiction(s) All countries to which none of the specific regimes apply All countries to which none of the specific regimes apply All countries to which none of the specific regimes apply All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention Corresponding Section Below Section 2 Question 2.6 and section 3 Question 2.6 and section 3 Question 2.6 and section 3 Question 2.6 and section 3 Question 2.6 and section 3 Question 2.6 and section 3 Question 2.6 and section 3 Question 2.6 and section 3 Applicable Law/ Statutory Regime Hague Convention on the International Protection of Adults of 13 January 2000 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 23 November 2007 Several bilateral treaties on the recognition and enforcement of judgments in civil and commercial matters (largely superseded by EU legislation or Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 30 October 2007) 2 General Regime Relevant Jurisdiction(s) All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention Corresponding Section Below Question 2.6 and section 3 Question 2.6 and section 3 Question 2.6 and section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? In the absence of any specific applicable regime, the recognition and enforcement of foreign executory titles are governed by the Austrian Enforcement Act ( EA ), in particular by sections 403 EA et seqq. Section 416 (1) EA expressively stipulates that in case of conflicts of provisions of the EA with provisions of international treaties or European law, the latter shall supersede the conflicting provisions of the EA. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Pursuant to section 403 EA, foreign legal acts and/or deeds (hereinafter executory titles ) shall be enforced in Austria after having been declared enforceable. The terms legal acts and/or deeds have to be interpreted widely. They mean any judgment given by a court or tribunal, whatever the judgment may be called, including a decree, preliminary injunction, etc., as long as the executory title is enforceable in the state of origin (i.e. the state in which the executory title was issued). The terms ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

23 Schönherr Rechtsanwälte GmbH Austria Austria legal acts and/or deeds of course also mean court settlements and public (e.g. notarial) deeds that can be enforced in the state of origin. The list below provides an overview of basic requirements regarding the declaration of enforceability: Enforceability in the state of origin: Section 406 EA does not refer to the legal force (Rechtskraft) but to the enforceability (Vollstreckbarkeit) in the state of origin, meaning that a foreign executory title may also be enforced if it is still subject to an appeal but enforceable in the state of origin. Pursuant to section 407 (3) EA, the party seeking enforcement has to provide a certification of enforceability issued by the foreign court and/or authority. Reciprocity must be stipulated either in an international treaty or in an Austrian regulation. The express stipulation of reciprocity in an international treaty and/or in an Austrian regulation is an indispensable requirement. However, this general requirement does not apply to executory titles regarding the civil and marital status (Personenstand). The matter could be brought before the foreign court when applying provisions of Austrian law on the jurisdiction of courts (section 407 [1]) EA). The document instituting the proceedings must have been served to the defendant (section 407 [2]) EA). The executory title to be enforced must be produced along with a certified translation thereof (Art. 8 of the Federal Constitution Act [B VG] and section 53 of the Rules of Procedure for the First and Second Instance Courts [GeO]). Absence of any grounds for refusal of recognition/ declaration of enforceability (see question 2.5 below). 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Pursuant to section 415 EA, sections 403 EA et seqq. have to be applied mutatis mutandis to the application for (mere) recognition of a foreign executory title that cannot be enforced. In particular, this provision applies to declaratory judgments (Feststellungsurteile) and judgments creating or altering the legal status (Rechtsgestaltungsurteile) which do not constitute any enforceable obligation. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. The application for the (mere) declaration of enforceability/ recognition has to be filed with the court of the place where the debtor is domiciled. The application does not trigger any court fees. If the application for declaration of enforceability/recognition is combined with an application for enforcement, the application can also be filed with the court having jurisdiction for the enforcement proceedings pursuant to sections 18 and 19 EA. Such application would trigger court fees depending on the amount with respect to which enforcement is sought. If a judgment contains a measure or an order which is not known in Austria, the court may adapt that measure or order a measure or an order known in Austria which has equivalent effects attached to it and which pursues similar aims and interests (sections 404 et seqq. EA). If both the declaration of enforceability and enforcement are granted by the first instance court simultaneously, the opponent s assets may be seized despite the fact that the declaration of enforceability has not become final and binding due to an appeal filed in the state of origin. However, no assets may be sold or otherwise realised as long as the declaration of enforceability has not become final and binding. The first instance court must make its decision on declaration of enforceability/recognition in ex parte proceedings (section 410 EA). If the documents provided by the applicant are insufficient, the court may grant the opportunity to remedy. Both parties may file an appeal against the first instance court s decision within a time period of four weeks. The appeal may be filed within a time period of eight weeks in the case that (i) a party s habitual residence is not in Austria, and (ii) the appeal constitutes the party s first opportunity to participate in the proceedings. The debtor must assert all grounds for a dismissal of the application for recognition/declaration of enforceability simultaneously in the appeal and is precluded from asserting them at a later stage of the proceedings. As the foreign executory title needs only to be enforceable in the state of origin (but not also final and binding, see question 2.2 above), the Austrian court may declare it enforceable although it is still subject to appeal in the state of origin. In such case the Austrian appellate court may stay proceedings until the executory title has become final and binding. It may also order that the party seeking enforcement must provide a security. A second appeal to the Austrian Supreme Court against the appellate court s decision requires that the question for determination by the Supreme Court concerns an issue of substantive or procedural law, the determination of which is deemed essential with regard to legal unity and security, or the further development of the law. Furthermore, the admissibility of a second appeal depends on the amount in dispute which must exceed EUR 5, in any event. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The debtor may challenge the declaration of enforceability/ recognition of the executory title if: one of the requirements for the declaration of enforceability/ recognition (see question 2.2 above) is not met; the debtor did not have the opportunity to attend the foreign proceedings and/or arrange for his defence due to procedural irregularities in the foreign proceedings (section 408 [1] EA); the declaration of enforceability would lead to the enforcement of an action that is not admissible and/or enforceable under Austrian law (e.g. actions that would constitute a criminal offence section 408 [2] EA); and the recognition or enforcement of the judgment would violate the Austrian public policy (ordre public section 408 [3] EA, also see question 2.8 et. seqq. below). 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Under domestic law, some provisions regarding specific matters take precedence over the general provisions of the EA so as to constitute leges speciales: sections 91a et seqq. of the Act on Non-Contentious Matters ( AußerstreitG ) regarding foreign executory titles on adoption matters; sections 97 et seqq. AußerstreitG regarding foreign executory titles on matrimonial matters; sections 112 et seqq. AußerstreitG regarding foreign executory titles on the attribution, exercise, delegation, restriction or termination of parental responsibility; and section 240 (1) of the Austrian Insolvency Code ( IA ) which is the legal framework applicable to the effects of the opening 20 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

24 Schönherr Rechtsanwälte GmbH Austria of foreign insolvency proceedings and the decisions rendered in the course of such foreign insolvency proceedings. Most of the multilateral conventions apply to the recognition and enforcement of foreign executory titles issued in family law matters: The Hague Convention concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations towards Children of 15 April The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 (hereinafter the Hague Convention 1996 ). The Hague Convention on the International Protection of Adults of 13 January 2000 (hereinafter the Hague Convention 2000 ). The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 23 November 2007 (hereinafter the Hague Convention 2007 ). The Hague Convention on Civil Procedure of 1 March 1954 (hereinafter the Hague Convention on Civil Procedure ) is limited to the declaration of enforceability of order for costs and expenses. Pursuant to Article 19 of The Hague Convention on Civil Procedure, order for costs and expenses shall be rendered enforceable without a hearing, but subject to subsequent appeal by the losing party in accordance with the legislation of the state where enforcement is sought. Article 31 (3) of the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 (hereinafter CMR ) rules on the enforceability of judgments issued in legal proceedings arising out of carriage under the CMR. Article 12 (1) of the Convention concerning International Carriage by Rail of 9 May 1980 (hereinafter COTIF ) rules on the enforceability of judgments issued by the competent court or tribunal pursuant to the provisions of the COTIF. As regards the recognition and enforcement of arbitral awards, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter the NYC ) and the European Convention on International Commercial Arbitration 1961 apply. Most of the bilateral treaties are superseded either by EU legislation or multilateral treaties such as the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In particular, the conflict between a foreign executory title and an Austrian judgment or proceedings pending in Austria is not listed as one of the grounds for refusal in section 408 EA (see question 2.5 above). 2.8 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? An inconsistency with Austrian statutory law and/or Austrian judgments does not constitute a ground for refusal of the recognition/ declaration of enforceability as long as it does not violate Austrian public policy (ordre public). Austrian public policy consists of the elementary principles of the Austrian legal system, the violation of which would be intolerable from an Austrian perspective. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? This would not constitute any ground for refusal as long as the executory title does not violate Austrian public policy (see questions 2.8 and 2.5 above) Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. Considering that all relevant provisions, being federal, apply to all nine federal provinces, there are no differences in the rules and procedure of recognition and enforcement between these provinces What is the relevant limitation period to recognise and enforce a foreign judgment? There is no limitation period for the declaration of enforceability/ recognition. However, claims arising from a judgment expire after 30 years as of the date on which the judgment became final and binding. Periodical claims (e.g. claims for maintenance) expire after three years (RGBl 105/1858). Austria 2.7 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? Pursuant to section 91a (2) AußerstreitG, a foreign executory title on adoption matters may not be recognised if the foreign executory title is inconsistent with an Austrian judgment issued prior to the foreign judgment. Equally, pursuant to section 97 (3) AußerstreitG, a foreign executory title on matrimonial matters may not be recognised if the foreign executory title is inconsistent with an Austrian judgment issued prior to the foreign judgment. Pursuant to section 113 (3) AußerstreitG, a foreign executory title regarding parental responsibility must not be recognised/declared enforceable if it is inconsistent with an Austrian judgment issued later than the foreign judgment. The EA contains neither any provisions similar to the above nor any provisions similar to Art. 45 of European Regulation 1215/2012/EU on jurisdiction and the recognition and enforcement of judgments. 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? Pursuant to section 91a (1) AußerStreitG, a foreign executory title on adoption matters shall be recognised if the foreign executory title (i) entered into legal force, and (ii) if no ground for refusal applies. Equally, pursuant to section 97 (1) AußerStreitG, a foreign executory title on matrimonial matters (such as divorce or the annulment of a marriage) shall be recognised if the foreign executory title (i) entered into legal force, and (ii) no ground for refusal applies. Pursuant to section 112 (2) AußerStreitG, the declaration of enforceability of an executory title on the attribution, exercise, delegation, restriction or termination of parental responsibility ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

25 Schönherr Rechtsanwälte GmbH Austria Austria requires that (i) the foreign executory title is enforceable in the state of origin, and (ii) that no ground for refusal applies. Section 240 (1) IA provides that the effects of the opening of foreign insolvency proceedings and the decisions rendered in the course of such foreign insolvency proceedings shall be recognised, if (i) the centre of main interests is situated in the foreign state, and (ii) the main features of the insolvency proceedings are comparable to insolvency proceedings under Austrian law and, in particular, Austrian creditors are treated in the same way as nationals of the state where the insolvency proceedings have been opened. Article 20 of The Hague Convention 2007 stipulates that the executory title must satisfy additional substantive requirements in order to be recognised and enforced (e.g. that the respondent was habitually resident in the state of origin at the time proceedings were instituted). 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? The bilateral and multilateral conventions set out in question 1.1 distinguish expressis verbis between recognition and enforcement (see, e.g., Article 23 et seqq. of The Hague Convention 1996, or Article 23 et seqq. of The Hague Convention 2007). Equally, Article III of the NYC distinguishes between recognition and enforcement. However, the terms recognition and enforcement have the same legal meaning as under domestic law. Please see question 2.3 as regards these terms under the EA. 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. Section 91b AußerstreitG regarding adoption matters and section 98 AußerstreitG regarding matrimonial matters provide for certain procedural particularities for the recognition of foreign executory titles: the application for recognition of a foreign executory title must be accompanied by (i) a copy of the foreign executory title, and (ii) proof that the executory title entered into legal force. Additionally, if the opponent did not appear in the foreign procedure, a proof of the document instituting the proceedings or any other document must be provided, which demonstrates the opponent s consent with the foreign executory title; and any appeal must be filed within a time period of one month. The appeal may be filed within a time period of two months in case that (i) a party s habitual residence is not in Austria, and (ii) the appeal constitutes the party s first opportunity to participate in the proceedings. Section 114 AußerstreitG, regarding the attribution, exercise, delegation, restriction or termination of parental responsibility, also provides for certain procedural particularities for the declaration of enforceability of foreign executory titles: The application for declaration of enforceability of a foreign executory title must be accompanied by (i) a copy of the foreign executory title, and (ii) proof that the foreign executory title was served to the opponent and is enforceable in the state of origin. Additionally, if the opponent did not appear in the foreign procedure, a proof of the document instituting the proceedings or any other document must be provided that demonstrates the opponent s consent with the foreign executory title. The procedure on the declaration of enforceability may be stayed if the foreign executory title did not enter into legal force. In this regard, the competent civil court may also determine a time period for an appeal against the foreign executory title in the state of origin. Any appeal must be filed within a time period of one month. The appeal must be filed within a time period of two months in case that (i) the opponent s habitual residence is not in Austria, and (ii) the appeal constitutes the opponent s first opportunity to participate in the proceedings. There is no reimbursement of procedural costs in this procedure. The multilateral conventions set out in question 1.1 provide, as a general rule, that the procedure for recognition or enforcement shall be governed by the law of the enforcing state, unless the respective convention provides otherwise (see, e.g., Articles 24 and 28 of The Hague Convention 1996, or Articles 23 and 27 of The Hague Convention 2000). As regards the procedure for the recognition and enforcement Article 23 (1) of The Hague Convention 2007 also refers to the law of the enforcing state. However, Article 23 (2) (11) of The Hague Convention 2007 provides for additional procedural particularities (e.g. the declaration of enforceability may only be refused if the executory title is manifestly incompatible with the public policy of the enforcing state, or any appeal against the declaration of enforceability must be filed within a period of 30 days; please see question 2.4 above for the procedure for recognising and enforcing a foreign judgment). Article 24 of The Hague Convention 2007 also provides for an alternative procedure for recognition and enforcement. However, this alternative procedure does not apply in Austria. Article III of the NYC also stipulates that arbitral awards shall be recognised and enforced in accordance with the rules of procedure of the enforcing state. Article IV (1) of the NYC provides that the party applying for recognition and enforcement of an arbitral award shall supply (i) a duly authenticated original award or a duly certified copy thereof, and (ii) the original arbitration agreement or a duly certified copy thereof. In this regard, the Austrian Supreme Court reconfirmed its previous finding that the formal requirements of Article IV (1) (a) NYC (authenticated original award or a duly certified copy thereof) are met, inter alia, if the party applying for recognition and enforcement provides the enforcement court with a copy of the original award duly certified by an authorised representative of the arbitral institution under the auspices of which the respective arbitral proceedings had been administered. Please see question 2.4 above as regards the general procedure for recognising and enforcing a foreign executory title. 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? Section 91a (2) and section 97 (3) AußerstreitG provide for particular grounds for refusal of recognition. Such grounds for refusal constitute, inter alia, (i) manifest incompatibility with public policy, or (ii) foreign executory title conflicting with Austrian judgments. Any appeal must be filed within a time period of one month pursuant to section 91b (4) and section 98 (4) AußerstreitG (please see question 3.3 above). Also, section 113 (3) AußerstreitG provides for particular grounds for refusal of the declaration of enforceability, such as the conflict of a foreign executory title with an Austrian judgment issued later than the foreign executory title. Any appeal must be filed within a time period of one month pursuant to section 114 (3) AußerstreitG (please see question 3.3 above) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

26 Schönherr Rechtsanwälte GmbH Austria Pursuant to section 240 (2) IA, the effects of the opening of foreign insolvency proceedings and the decisions rendered in the course of such foreign insolvency proceedings will not be recognised in Austria if (i) the insolvency proceedings have already been opened in Austria or interim measures have already been issued, or (ii) the recognition is evidently contrary to public policy. The multilateral conventions also establish particular grounds for refusal of the declaration of enforceability/recognition and enforcement (see e.g. Article 22 of The Hague Convention 2000). Such grounds for refusal constitute, inter alia, (i) proceedings between the same parties with the same purpose that are pending before an authority of the enforcing state, or (ii) manifest incompatibility with the public policy of the enforcing state. However, the multilateral conventions expressly stipulate that the procedure for recognition and enforcement shall not imply a review of the merits of the executory title (prohibition of révision au fond; see, e.g., Article 26 of The Hague Convention 2000). Article 23 (6) of The Hague Convention 2007 provides that any appeal must be filed within a period of 30 days. Article V (1) and (2) of the NYC stipulates the grounds for refusal of recognition and enforcement of arbitral awards. The recognition and enforcement of arbitral awards may be refused if, inter alia, (i) the arbitration agreement is not valid, (ii) the subject matter in dispute was not capable of settlement by arbitration, or (iii) the recognition and enforcement would be contrary to the public policy of the enforcing state. Article V (1) of the NYC stipulates grounds for refusal of recognition that have to be pleaded by the party resisting the recognition and enforcement. The grounds provided for in Article V (2) NYC have to be considered by the competent court ex officio. Under the NYC, the principle of prohibition of révision au fond also applies. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? compulsory administration (Zwangsverwaltung sections EA); or compulsory sale by auction (Zwangsversteigerung sections EA). There are a number of different proceedings available for executory titles directed at claims for specific performance. The most important ones are enforcement of obligations to act or to refrain from particular actions as well as the obligation to tolerate something or someone doing something. Such obligations can be enforced either by substitute performance or by imposing penalties for contempt. 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. Most recently, the Federal Law on the amendment to the EA (Exekutionsordnungs-Novelle 2016), Federal Law Gazette I no. 100/2016, formally relocated the relevant provisions on the recognition and enforcement of foreign judgments, but did not change the substantive rules on the declaration of enforceability/recognition and enforcement of foreign judgments. Pursuant to section 447(2) EA, the respective amendment entered into force on 2 January As a consequence of this most recent amendment to the EA, the declaration of enforceability, recognition and enforcement of foreign judgments is now governed by sections 403 et seqq. EA and not by sections 79 et seqq. EA as was previously the case. In general, the amendment to the EA serves the purpose of implementing rules that accompany European Regulation 655/2014/ EU, which establishes an account preservation order procedure and to introduce a systematic and coherent chapter on international enforcement law. Austria Executory titles expressed in monetary terms can be enforced on the debtor s following types of moveable assets: the debtor s moveables (Fahrnisexekution sections EA); the debtor s receivables against third party debtors (Forderungsexekution sections EA; if the debtor is a natural person, the creditor may seize the debtor s salary claims even if the debtor s employer is unknown; in all other cases the enforcement on claims against third party debtors is only admissible if the creditor is able to name the third party debtor); the debtor s claims for delivery against third party debtors (Exekution auf Ansprüche auf Herausgabe und Leistung körperlicher Sachen sections EA); and enforcement in respect of other pecuniary rights (Exekution auf andere Vermögensrechte sections EA; e.g. enforcement by realisation of the debtor s claim to occupy and/or use leased property). Monetary claims can also be enforced on immoveable assets by: compulsory creation of a mortgage (Zwangsweise Pfandrechtsbegründung sections EA this type of enforcement will not satisfy the creditor but the creditor s claim is secured by means of mortgage registration with the land registry); 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? Apart from the land registry and the commercial register, there are no further publicly available registers listing assets of a particular person. We would recommend representation by an Austrian attorney in any event in order to elaborate a well-considered enforcement strategy. Furthermore, we believe that it can be useful to get in touch with the competent judge before submitting the application for a declaration of enforceability/recognition. In particular, this may be useful in instances where it is not clear if the present documents, translations and/or certifications will suffice. We recommend providing only translations by translators that are registered in the official Austrian list of sworn translators in order to avoid any concerns regarding the translator s capacity to issue a certification of his/her translation. The application for enforcement (but not the application for declaration of enforceability without simultaneously seeking enforcement see question 2.4 above) triggers court fees depending on the amount to be enforced. If it is not clear whether the debt can be collected due to the uncertain financial situation of the debtor, it can make sense to enforce only a part of the claim in order to keep the court fees as low as possible. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

27 Schönherr Rechtsanwälte GmbH Austria Maximilian Raschhofer Schönherr Rechtsanwälte GmbH Schottenring Wien Austria Sebastian Lukic Schönherr Rechtsanwälte GmbH Schottenring Wien Austria Austria Tel: m.raschhofer@schoenherr.eu URL: Dr. Maximilian Raschhofer is an attorney at law specialising in dispute resolution. His focus lies on cross-border litigation and enforcement of foreign judgments and arbitral awards. He is also an expert in medical law. Maximilian is an author and editor of various publications. Tel: s.lukic@schoenherr.eu URL: Mr. Sebastian Lukic is an associate specialising in dispute resolution. His focus lies on investment and commercial arbitration as well as other forms of alternative dispute resolution. Sebastian is also an expert in European law. Sebastian is author of various publications. Schönherr is a leading full service law firm in Central and Eastern Europe. About 300 professionals service national and international clients from our offices in Austria, Belgium/EU, and throughout the entire CEE region. Operating in a rapidly evolving environment, we are a dynamic and innovative firm with an effective blend of experienced lawyers and young talent. As one of the first international law firms to move into CEE, we have grown to be one of the largest firms in the region. Our offices and country desks provide comprehensive coverage of CEE, allowing us to offer solutions that perfectly fit the given industry, jurisdiction and company. Schönherr complies with the respective local legal standards and conduct rules in all countries; therefore, the local firm name may vary from jurisdiction to jurisdiction ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

28 Chapter 5 Belgium Joost Verlinden Linklaters LLP Nino De Lathauwer 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 Belgian Code of Private International Law of 16 July 2004 ( CPIL ) 2 General Regime Relevant Jurisdiction(s) All foreign jurisdictions Corresponding Section Below Section 2 a state authority exercising judicial power, i.e. the competence to decide over a dispute in a binding manner. Any such decision is apt to be recognised or declared enforceable, whatever the name of the decision and whatever the nature of the authority that has rendered it, be it a body belonging to the judiciary, administration or other state division. Foreign arbitral decisions or decisions stemming from an international authority fall outside the scope of the recognition and enforceability regime of the CPIL. As to the nature of the foreign judgment, in accordance with Article 25, 1, 4 CPIL, the foreign judgment needs to be final, meaning that no ordinary recourses are left available (see further, the grounds for refusal dealt with under question 2.5). Further to Article 24, 1, 3 CPIL, the foreign judgment also needs to be enforceable in its country of origin, be it that, with a view to obtaining a declaration of enforceability, this may be provisional as per Article 23, 4 CPIL. 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? The general regime of recognition and enforceability of foreign judgments is laid down in the Belgian Code of Private International Law of 16 July 2004 ( CPIL ) and pertains to the entire field of civil and commercial matters. The CPIL provides for a regime of recognition and enforceability by default, subject to the application of international treaties, European legislation or more specific rules of Belgian law (Article 2 CPIL). The general rules are to be found in Chapter I, Section 6, in particular Articles 22 to 25 and 30 CPIL. The CPIL entered into force on 1 October Foreign judgments rendered as of 1 October 2004 are hence subject to the CPIL enforcement and recognition regime, regardless of when the action that has led to the foreign judgment was instituted (Article 126, 2 CPIL). The CPIL, however, also extends the benefit of the recognition and enforcement regime to foreign judgments rendered prior to the date of entry into force (Article 126, 2 CPIL). Such foreign judgments may hence be recognised under either the prior regime or the current regime of the CPIL. The CPIL is applicable to all foreign judgments pertaining to civil and commercial matters, regardless of their country of origin. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? In accordance with Article 22, 3, 1 CPIL, for the purposes of the CPIL, a judgment is to be understood as a decision stemming from 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? The notion of recognition indeed differs from the notion of enforcement. Recognition is to be understood as the conferral of binding force to a foreign judgment (Article 22, 3, 2 CPIL). It is the acknowledgement of the legal situation established by the foreign judgment. Enforcement is the forced execution of a judgment. In the framework of the CPIL, enforcement of a foreign judgment will have to be preceded by a declaration of enforceability (commonly called exequatur). The exequatur is the conferral of the same force attached to a national enforceable judgment, giving access to the available national execution measures. For the purposes of clarity, the CPIL does not provide for execution measures, only for rules on enforceability. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 1) Preliminary formality: legalisation Before a foreign judgment can be produced in Belgium, it needs to be legalised (Article 30, 1 CPIL). It must be noted that legalisation only confirms the authenticity of the signature, the capacity in which the signatory of the document has acted and, as the case may be, the identity of the seal or stamp on the document. Legalisation does not imply recognition. Legalisation is a two-step process. First, the foreign judgment needs to be legalised in the country of origin by virtue of its laws and by ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

29 Linklaters LLP Belgium Belgium intervention of its competent authorities. Next, the foreign judgment needs to be legalised by the Belgian authorities in accordance with Belgian law. Article 30, 2 CPIL designates the competent authorities for Belgium via a cascade system. Legalisation is done by (i) a Belgian diplomatic or consular official accredited in the state where the judgment has been rendered, (ii) in the absence thereof, a diplomatic or consular official of the foreign state who upholds the interests of Belgium in that state, and (iii) in the absence thereof, the Minister of Foreign Affairs. It must be noted that several international treaties (e.g. the Apostille Convention of 5 October 1961) and European instruments (e.g. the Brussels Ibis Regulation) include an abolishment or attenuation of the requirement of preliminary legalisation. 2) Recognition Article 22, 1 CPIL provides for an automatic recognition of a foreign judgment without there being a need to conduct proceedings. Hence, a foreign judgment may be presented to administrative authorities absent any preliminary procedure. It must be noted, however, that recognition, while being automatically awarded, is precarious and subject to compatibility with the grounds for refusal (see further, question 2.5). A foreign judgment may also be recognised in the Belgian legal order in two other ways, either via a declaratory procedure for the sole purpose of recognition (Article 22, 1 CPIL) or incidentally via a decision in the framework of an ongoing procedure (Article 22, 2 CPIL). Declaratory proceedings aimed at obtaining recognition are to be conducted in accordance with the procedural rules for declaratory proceedings aimed at obtaining a declaration of enforceability (Article 22, 2 CPIL; see further in this subsection under enforceability). The proceedings may be instituted by any interested party and, in the case of matters pertaining to the status of physical persons, also by the public prosecution. The incidental issue of recognition will be dealt with by the Belgian court for which the case is pending in which the issue has been brought up (Article 22, 1 CPIL). The party invoking the recognition of a foreign judgment needs to produce the same documents as need to be produced in the framework of proceedings aimed at obtaining a declaration of enforceability (see further in this subsection under enforceability). A foreign judgment may be recognised in whole or in part. 3) Enforceability In order to be able to enforce a foreign judgment in Belgium, the foreign judgment needs to be first declared enforceable via preliminary declaratory proceedings (Article 22, 1 CPIL). The action for declaration of enforceability needs to be brought before the court of first instance (Article 23, 1 CPIL). Territorial jurisdiction is determined via a cascade system. The action is to be brought before (i) the court of the domicile or habitual residence of the defendant, and (ii) in the absence thereof, the court of the place of execution. If this were not possible, then the action is to be brought before (iii) the court of the requesting party s domicile or habitual residence, and (iv) in the absence thereof, before the court of Brussels (Article 23, 2 CPIL). The action for declaration of enforceability is to be instituted on the basis of a unilateral petition (ex parte procedure) and conducted in accordance with Articles 1025 to 1034 of the Belgian Code of Civil Procedure ( CCP ) relating to proceedings via unilateral petition (Article 23, 3 CPIL). A lawyer is required to intervene in order to sign the unilateral petition (Article 1026, 5 CCP). The requesting party is obliged to choose a domicile for the purposes of the procedure in the judicial district of the competent court (Article 23, 3 CPIL). The proceedings may be instituted by any interested party and, in the case of matters pertaining to the status of physical persons, also by the public prosecution (Article 22, 2 CPIL). In accordance with Article 24 CPIL, the requesting party needs to submit the following documents when filing an action for declaration of enforceability: (i) a certified copy of the decision, which according to the laws of the state where it has been rendered, meets the conditions required for the authenticity thereof; (ii) in the case of a decision rendered by default, the original or a certified copy of the document establishing that the document by which the proceedings were instituted, or an equivalent document, was served or brought to the notice of the defaulting party in accordance with the laws of the state where the decision has been rendered; and (iii) any document on the basis of which it can be established that, according to the laws of the state where the decision has been rendered, the decision is enforceable and has been served or brought to notice. In the absence of the production of the required documents, the court may either set a time period for the production thereof, or decide to accept equivalent documents. The court may also decide to exempt the requesting party from the production of those documents if it deems itself to be sufficiently informed (Article 24, 2 CPIL). The court may hear the requesting and intervening parties (Article 1028 CCP). The court has to deliver its judgment within a short timeframe, without this period being further defined (Article 23, 3 CPIL). A foreign judgment in regard of which an ordinary recourse has been made or is still available, can be enforced provisionally (Article 23, 4 CPIL). The judge may make the enforcement subject to the provision of a guarantee (Article 23, 4 CPIL). The requesting party, or as the case may be, an intervening party, may appeal the decision before the court of appeals within one month after notification of the decision (Article 1031 CCP). A third party may oppose the decision within one month after formal service of the decision before the court of first instance that has rendered the decision (Article 1033, 1034, and 1125 CCP). Appeal will again be possible before the court of appeals after the court of first instance for which the opposition is brought has rendered its decision. A limited appeal against a judgment of the court of appeals is available before the Supreme Court. If opposition is made against a judgment of the court of appeals, then the only recourse available is the limited appeal before the Supreme Court. The decision of the Belgian court with regard to enforceability of a foreign judgment will itself be provisionally enforceable notwithstanding appeal, unless stated otherwise (Article 1029 CCP). However, during the period for filing an appeal against a decision granting the enforceability and, upon filing, until the appeal has been dealt with, the requesting party can only take conservatory measures with regard to the assets of the party against which the enforcement action is directed (Article 23, 5 CPIL). The decision granting enforceability bears leave to take such measures (Article 23, 5 CPIL). According to recent case law, once a judgment has been rendered upon opposition against the ex parte judgment, the restriction included in article 23, 5 CPIL does no longer apply such that the judgment creditor can take other execution measures as well. A foreign judgment may be declared enforceable in whole or in part ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

30 Linklaters LLP Belgium 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Article 25, 1 CPIL provides for eight general grounds for refusal of recognition and enforceability of a foreign judgment: 1) Manifest incompatibility with private international law public order (Article 25, 1, 1 CPIL). Private international law public order is a notion that is narrower than the domestic public order and refers to the principles that are essential for the moral, political and economic order of Belgium. The courts are to look at the actual consequences of a recognition or enforceability of the foreign judgment, assess their severity, and take into account the manner in which the case is connected to the Belgian legal order. 2) Violation of the rights of defence (Article 25, 1, 2 CPIL). The notion of rights of defence in the meaning of this ground for refusal does not include every right or rule which a party is entitled to invoke under Belgian procedural law, yet rather pertains to its fundamental principles. It has to be assessed whether the parties actually had the possibility before the foreign court to put forward their arguments in a setting that complies with the essence of due process according to Belgian law. 3) Sole intention to evade the application of the laws of the state designated by the CPIL in a matter in which parties cannot freely dispose of their rights (Article 25, 1, 3 CPIL). This refusal ground is directed towards the recourse to the judicial system of a foreign state if the sole purpose for said recourse was law evasion. The scope of the refusal ground is, however, limited to matters in which parties cannot freely dispose of their rights, which is to be construed broadly (e.g. mandatory rules for the protection of contracting parties). 4) Susceptibility to ordinary recourse of the foreign judgment (Article 25, 1, 4 CPIL). What is understood by ordinary recourse is to be determined in accordance with the laws of the country of origin. By virtue of Article 23, 4 CPIL, a foreign judgment in regard of which an ordinary recourse has been made or is still available, can in spite of this refusal ground be enforced provisionally. A provisionally enforceable judgment may hence be declared enforceable despite not being final. 5) Incompatibility with a Belgian decision or a preceding foreign decision that can be recognised in Belgium (Article 25, 1, 5 CPIL). The notion of decision is broader than the notion of judgment and therefore applies to other rulings with binding force such as Belgian arbitral awards or foreign arbitral awards that can be recognised in Belgium. For incompatibility with a foreign judgment to imply refusal, said foreign judgment needs to predate the judgment for which recognition or enforceability is sought. In contrast, incompatibility with a Belgian decision implies refusal regardless of whether rendered before or after the foreign judgment. 6) Institution of foreign legal action post institution of Belgian legal action still pending and involving the same parties and cause of action (Article 25, 1, 6 CPIL). 7) Violation of exclusive jurisdiction of the Belgian courts (Article 25, 1, 7 CPIL). The CPIL only provides for one ground of exclusive jurisdiction in Article 6. Article 6 CPIL confers exclusive jurisdiction to the Belgian courts in the event of an exclusive forum clause in favour of Belgium. The refusal ground may also apply in relation to exclusive jurisdiction grounds included in other legislative instruments (e.g. the Brussels I Bis Regulation). 8) Jurisdiction of the foreign courts exclusively vested on the presence of the defendant or on the presence of assets that have no direct connection with the dispute pending in the state of those foreign courts (Article 25, 1, 8 CPIL). This refusal ground is meant to tackle the excessiveness of a foreign court s claim for jurisdiction. For the purposes of this refusal ground, presence implies the absence of any sustained connection with the foreign territory and is hence to be distinguished from notions such as domicile or habitual residence. Article 25, 1, 9 CPIL refers to the supplementary grounds of refusal included in the Sections of the CPIL related to specific subject matters (see further, question 2.6). Article 25, 2 CPIL makes clear that the Belgian courts cannot review the foreign judgment on its merits. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? The CPIL provides for diverging rules on the recognition and enforceability of foreign judgments relating to specific subject matters, i.e.: 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). 2.7 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? Such incompatibilities may give rise to refusal of recognition and enforceability in the event that Article 25, 1, 5 or 6 CPIL applies (see question 2.5 above). 2.8 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? Incompatibility with local law does not constitute a ground for refusal in the framework of the CPIL, unless it would constitute an incompatibility with private international law public order (see question 2.5 above for a discussion on Article 25, 1, 1 CPIL). Incompatibility with a prior judgment may constitute a ground for refusal as per Article 25, 1, 5 CPIL (see question 2.5 above), regardless of whether the same or different parties are involved. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? There is no particular approach if a foreign judgment purports to apply the laws of Belgium. It can, however, be expected that a court will have a closer look at the content of the foreign judgment, yet this should in principle have no influence on recognition and enforceability. The foreign judgment is not to be reviewed on the merits. Belgium ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

31 Linklaters LLP Belgium 2.10 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 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? Belgium There are no differences. Private international law constitutes federal legislation, applicable nationwide What is the relevant limitation period to recognise and enforce a foreign judgment? This is not applicable in Belgium please refer to question 3.1 above. 4 Enforcement The CPIL does not provide for a limitation period in view of recognition and enforceability. It must, however, be noted that a precondition for the recognition and enforceability of a foreign judgment is that this judgment is enforceable in its country of origin, which is to be assessed in accordance with the laws of the country of origin. Furthermore, Belgian law does provide for a limitation period with regard to the legal action aimed at the execution of a Belgian judgment (actio iudicati). Said action will be time-barred after 10 years as of the date of the Belgian judgment (Article 2262bis, 1 of the Belgian Civil Code). Said time bar will probably also apply to the legal action aimed at the execution of a Belgian judgment declaring a foreign judgment enforceable. 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? Belgium does not have specific national enforcement regimes applicable to judgments from certain countries. It must, however, be noted that Belgium is a party to several bilateral and multilateral treaties (e.g. the CMR Convention of 19 May 1956; the Convention of 30 June 2005 on Choice of Court Agreements) and subject to several European instruments (e.g. the Brussels Ibis Regulation, the Insolvency Regulation) including rules on recognition and enforcement of foreign judgments, which will prevail over the application of the CPIL. 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? This is not applicable in Belgium please refer to question 3.1 above. 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. This is not applicable in Belgium please refer to question 3.1 above. 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? The enforcement may, for example, comprise attachment of movable and immovable assets, third party attachment, garnishment of bank accounts and earnings. 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. On 29 October 2015, the Supreme Court ruled that the judge dealing with a request for declaration of enforceability himself has an obligation to examine whether an ordinary recourse is still available in the country of origin of the foreign judgment upon the assessment of a possible application of the refusal ground included in Article 25, 1, 4 CPIL. This case law is a confirmation of the principle included in Article 15, 1 CPIL that a judge has the duty to examine the content of foreign laws designated by the CPIL. 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? The CPIL provides for a swift regime of recognition and enforceability. It must, however, be emphasised that automatic recognition as referred to above only constitutes a presumed recognition (see question 2.4 above). There is still an obligation for any authority confronted with a foreign judgment to assess whether any of the refusal grounds referred to above constitutes an impediment to recognition. In order to obtain legal certainty, a requesting party is therefore advised to seek recognition via court intervention. In Belgium, a conservatory attachment can rather easily be obtained provided that there is an element of urgency involved. In principle, the attachments judge is required to intervene. If, however, it is sought on the basis of a judgment, conservatory attachment can be performed without prior intervention of the attachments judge (Article 1414 CCP). The rule also applies to foreign judgments without there being a need to first procure a declaration of enforceability. This equivalence ensues from the system of automatic recognition as referred under question 2.4 above. If conservatory attachment has been performed without prior leave of the attachments judge, opposition before said judge is available as recourse. As referred to above under question 2.4, it must be noted that a decision granting enforceability bears leave to take certain conservatory measures (Article 23, 5 CPIL). Hence, in that particular case, the urgency requirement does not apply ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

32 Linklaters LLP Belgium Joost Verlinden Linklaters LLP Brederodestraat Brussels Belgium Nino De Lathauwer Linklaters LLP Brederodestraat Brussels Belgium Tel: joost.verlinden@linklaters.com URL: Joost Verlinden specialises in domestic and cross-border litigation and national and international arbitration. He has significant experience in all forms of commercial litigation: accountants liability; banking litigation; construction cases; contractual disputes; corporate litigation (including post-acquisition claims and shareholder disputes); insolvency disputes; product liability; sovereign debt issues; and white-collar crime. He represents clients before all Belgian courts and acts as counsel and arbitrator in CEPANI, the Belgian Federation of Diamond Bourses, ICC, SCC, UNCITRAL and ad hoc arbitrations. Joost is the author of numerous articles on arbitration, class actions, civil procedure, corporate litigation, insolvency law and product liability. He is constantly recommended as a leading attorney for dispute resolution in Belgium by Chambers and by The Legal 500. He has been a litigation partner since Tel: nino.de_lathauwer@linklaters.com URL: Nino De Lathauwer has been an associate in the dispute resolution department of Linklaters Brussels since 2013, having joined the firm after acquiring a Master s degree in law from KU Leuven (the Catholic University of Leuven) and an advanced master in financial techniques at ESSEC Business School. His main fields of focus include contractual disputes, corporate litigation, arbitration, post-acquisition claims, insolvency and white-collar crime, both domestic and crossborder. Nino further holds a position as a teaching assistant at the Centre for Methodology of Law of KU Leuven and has published in the area of civil procedure. Belgium Linklaters is a leading global law firm, supporting clients in achieving their strategies wherever they do business. We use our expertise and resources to help clients pursue opportunities and manage risk across emerging and developed markets around the world. Our global approach and commitment to excellence ensure the highest standards of quality and service across all our relationships. We build lasting relationships to support clients as they adjust to changes in their markets and the regulatory landscape. We bring discipline, teamwork and agility to help our clients navigate important business challenges successfully. Our focus is on consistently delivering integrated, global solutions, built on our strong local capability. Although we are organised across three divisions, advising our clients invariably involves more than one division and jurisdiction. This is why we take a team-driven, collaborative approach to all that we do for our clients. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

33 Chapter 6 Brazil Renato Stephan Grion Pinheiro Neto Advogados Guilherme Piccardi de Andrade Silva 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 Las Leñas Protocol on Jurisdictional Cooperation and Assistance in Civil, Commercial, Labor 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 OAS Inter-American Convention on International Commercial Arbitration 1975 Panama Convention (Legislative Decree No. 90, dated 6 June 1995 and Decree No. 1,902, dated 9 May 1996 OAS Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards 1979 Montevideo Convention (Legislative Decree No. 93, dated 20 June 1995 and Decree No. 2,411, dated 2 December 1997) United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 New York Convention (Legislative Decree No. 52, dated 25 April 2002 and Decree No. 4,311, dated 23 June 2002) The MERCOSUL Accord on International Commercial Arbitration Buenos Aires Convention 1998 (Legislative Decree No. 265, dated 29 December 2000 and Decree No. 4,719, dated 4 June 2003) Relevant Jurisdiction(s) Brazil, Argentina, Paraguay, Uruguay, Bolivia and Chile All signatory countries to the Convention All signatory countries to the Convention All signatory countries to the Convention Brazil, Argentina, Paraguay and Uruguay Corresponding Section Below Section 3 Section 3 Section 3 Section 3 Section 3 Applicable Law/Statutory Regime Havana Convention on International Private Law 1928 Bustamante Code (Decree No. 18,871, dated 13 August 1929) Brazil s Federal Constitution (article 105, item I, letter i) Law of Introduction to the Norms of the Brazilian Law Decree-Law No. 4,657, dated 4 September 1942 Brazilian Code of Civil Procedure 2015 Federal Law No. 13,105, dated 16 March 2015 (effective as from 18 March 2016) Brazilian Arbitration Law 1996 Federal Law No. 9,307, dated 23 September 1996 Internal Rules of Procedure of the Brazilian Superior Court of Justice 2 General Regime Relevant Jurisdiction(s) Brazil, Peru, Uruguay, Panama, Ecuador, Mexico, El Salvador, Guatemala, Nicaragua, Bolivia, Venezuela, Colombia, Honduras, Costa Rica, Chile, Argentina, Paraguay, Haiti, Dominican Republic, United States of America and Cuba Corresponding Section Below Section 3 Brazil Section 2 Brazil Section 2 Brazil Section 2 Brazil Section 2 Brazil Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Brazil s legal framework on the recognition and enforcement of foreign judgments and foreign arbitral awards is composed of (i) Brazil s Federal Constitution (article 105, item I, letter i), (ii) the Law of Introduction to the Norms of the Brazilian Law Decree- Law No. 4,657, dated 4 September 1942, (iii) the Brazilian Code of Civil Procedure 2015 Federal Law No. 13,105, dated 16 March 2015, (iv) the Brazilian Arbitration Law 1996 Federal Law No. 9,307, dated 23 September 1996, and (v) the Internal Rules of Procedure of the Brazilian Superior Court of Justice ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

34 Pinheiro Neto Advogados Brazil 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? enforcement proceedings. In that sense, and especially when it comes to declaratory awards, it is possible that interested parties could solely pursue the recognition of the judgment. In Brazil, the basic formal and substantive requirements for the recognition and enforcement of foreign judgments or foreign arbitral awards are: (a) judgments or arbitral awards must have been rendered by a state court or arbitral tribunal that held jurisdiction over the matter, according to the law of the jurisdiction of origin; (b) in what regards arbitral awards, it is necessary that the parties involved in the arbitral proceedings were legally capable of entering into arbitral agreements/clauses and the matter examined by the arbitral tribunal was indeed arbitrable under Brazilian Law; (c) defendants must have been duly served process and been given the opportunity to present their case, or, in case a default judgment occurs, it must be evidenced that it was carried out lawfully; (d) the content of the decision must not violate Brazil s public policy, national sovereignty or the dignity of the human person; (e) there must be no conflict between the decision to be recognised and a previous final domestic decision on the same matter and involving the same parties (please refer to question 2.7 below for further details); (f) the decision must be valid, lawful and enforceable in the jurisdiction where it was rendered (as a rule, the Brazilian Superior Court of Justice only ratifies foreign decisions that became res judicata; however, said Court has precedents granting exequatur to letters rogatory issued by foreign authorities based on interim decisions); (g) the original or a certified copy of the foreign judgment to be recognised must be presented together with a sworn translation and have been previously authenticated by the competent Brazilian consular authority (unless such formality is dispensed by international treaties); if it is a foreign arbitral award, the original or a certified copy of the arbitration agreement should be presented as well, accompanied by a sworn translation; and (h) the foreign judgment or foreign arbitral award must, in principle, be sufficiently reasoned. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Yes, recognition and enforcement are different concepts under Brazilian law. In general terms, recognition may be defined as the admission and acknowledgment as to the existence, validity and enforceability of the relevant foreign decision by Brazil s judicial authority responsible for such ratifications (i.e., the Brazilian Superior Court of Justice). The recognition of a foreign judgment has the effect of legally transforming said decision into an enforceable decision within the Brazilian territory. In its turn, the enforcement of foreign judgments or awards may be defined as the process through which an interested party puts in force (enforces) the provisions contained in the previously recognised foreign judgment or award. Considering the above, it is unlikely that a judgment creditor would be interested in solely seeking the recognition of the relevant foreign decision, without carrying out its subsequent enforcement. Notwithstanding, once the Brazilian Superior Court of Justice recognises a foreign judgment, it technically starts producing its effects in Brazil immediately, without the need for subsequent 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. The recognition and enforcement of foreign judgments in Brazil commences with the interested party presenting a recognition request (in the form of a petition/application in writing) to the Brazilian Superior Court of Justice, and providing the necessary documents to demonstrate the fulfilment of the formal and substantive requirements for ratification. Recognition requests filed before the Brazilian Superior Court of Justice must be accompanied by the following documents: (i) the original or a certified copy of the judgment to be recognised; (ii) for the recognition of arbitral awards, the original or a certified copy of the arbitral agreement; and (iii) any other documents necessary to demonstrate the fulfilment of the formal and substantive requirements for recognition. As a rule, documents presented in recognition proceedings must (a) be accompanied by a sworn translation of its content into Portuguese, and (b) have been previously authenticated by the competent Brazilian consular authority. After the filing of the recognition request, the President of the Court may demand that the interested party presents additional documents and/or amend its initial application. Should the Court interpret that documents presented by the plaintiff are sufficient and the request is formally adequate, it will determine that service of process be effected on the defendant, who will then have the opportunity to present its response. If the defendant assents to the recognition request, the President of the Court himself or herself decides the case. Should the defendant challenge the request, the case is remitted to the Superior Court of Justice s Special Court (composed by the most senior Justices of the Court). During the course of the proceedings, the Court may determine the plaintiff and defendant to provide, respectively, a reply and a rebuttal, as well as any additional documents it may deem necessary. In addition, the Federal Public Prosecutors Office will be summonsed to present an opinion on the case. After these developments, the Superior Court of Justice s Special Court proceeds to render its final decision on the case. The length of the proceedings may vary considerably, depending on whether the opposite party agrees with the recognition request or challenges it, thus increasing the procedure s complexity. A time estimate for the Brazilian Superior Court of Justice to recognise a foreign judgment or a foreign arbitral award may vary, on average, between six months (when the defendant does not oppose the recognition request) to two-and-a-half years. Against a final decision recognising a foreign judgment or foreign arbitral award rendered by the Superior Court of Justice, the parties involved may present, in very specific circumstances, an extraordinary appeal, directing the case to the Federal Supreme Court of Brazil. Once the recognition is granted by the Superior Court of Justice, the foreign judgment becomes res judicata in Brazil, and the interested party may present a request for enforcement before competent Brazilian Federal Courts. It is possible for the Brazilian Superior Court of Justice to recognise only a part of the judgment in matter. This may occur either because the Court understands that only a part of the judgment is recognisable, or because the parties, for any given reason, requested the recognition of only part of the decision. Brazil ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

35 Pinheiro Neto Advogados Brazil Brazil 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Formal and substantive oppositions may be presented with the purpose of challenging requests for recognition of foreign decisions in Brazil. These oppositions may be presented before the Superior Court of Justice during the recognition proceedings. The main grounds for opposing recognition consist in alleging that: (a) process was not duly served on the defendant; (b) the decision in matter was issued by an incompetent state court or arbitral tribunal; (c) the decision in matter fails to fulfil the requirements for it to be considered valid, lawful and enforceable in its jurisdiction of origin; (d) the interested party failed to observe the procedural requirements and/or provide the necessary documents for the recognition proceeding; (e) the decision did not become res judicata and/or is not, for any given reason, enforceable in its jurisdiction of origin; and/or (f) the decision in matter violates Brazil s public policy, its national sovereignty or the dignity of the human person. Concerning arbitral awards, certain specific defences may also be presented, such as: (a) the parties lacked capacity for entering into/signing arbitral agreements/clauses; (b) the arbitration agreement/clause that led the parties to arbitration is invalid according to the law of the jurisdiction in which the proceedings were seated and the award was rendered; (c) one or some of the parties was/were not given the opportunity to participate in the selection of arbitrators or in other relevant aspects of the proceedings and/or did not have the chance to present its case; (d) the arbitral proceedings are, for any given reason, invalid under the law of the jurisdiction where the award was rendered; (e) the arbitral award is, for any given reason, not binding and/ or enforceable in the jurisdiction where it was rendered (for example, when the award has been set aside or suspended by state courts of the jurisdiction of origin); (f) the award settles disputes related to matters that are not arbitrable according to Brazilian law (which admits arbitration only for the resolution of conflicts involving disposable patrimonial rights); and/or (g) the arbitral award violates Brazil s public policy, its national sovereignty or the dignity of the human person. 2.7 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? In Brazil, there is no lis pendens between domestic and foreign proceedings. Therefore, the first decision (domestic or foreign) to become res judicata will be enforceable in Brazil, and subsequent judgments on the matter are considered not enforceable. For these purposes, a foreign judgment may only be considered res judicata within the Brazilian territory when the corresponding decision of recognition granted by the Superior Court of Justice becomes final and not subject to appeal (also, therefore, res judicata). 2.8 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? A conflict between the content of a foreign decision and provisions of Brazilian law will only constitute an obstacle for the recognition and enforcement of said decision in Brazil if it is demonstrated that such conflict represents a violation of Brazil s public policy, of its national sovereignty or of the dignity of the human person. Similarly, a prior judgment on the same or a similar issue involving different parties is not, at least in principle, an obstacle for the recognition and enforcement of foreign decisions in Brazil. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? The Brazilian Superior Court of Justice does not review the merits of the judgment or arbitral award. Therefore, the recognition of foreign judgments in Brazil depends solely on the fulfilment of the necessary legal requirements (see question 2.2 above). One relevant factor pertaining to this topic is that Brazilian law establishes that Brazilian courts hold exclusive jurisdiction over certain subject matters. Therefore, any foreign judgment that decides on such matters is unrecognisable and unenforceable within the Brazilian jurisdiction Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? In Brazil, there are no particular legal provisions applicable for the recognition and enforcement of foreign judgments or arbitral awards related to specific subject matters. There are no differences in the rules and procedure of recognition and enforcement between states/regions/provinces in Brazil What is the relevant limitation period to recognise and enforce a foreign judgment? Although this issue is still not settled under Brazilian law, some scholars are of the opinion that: (a) the limitation period for the enforcement of a foreign judgment is the same as the one applicable to the filing of the procedure in which the state court or arbitral tribunal rendered the relevant decision; and (b) during the course of recognition proceedings, limitation periods should remain suspended ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

36 Pinheiro Neto Advogados Brazil 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? Las Leñas Protocol. Judgments must: (a) adequately meet the formal requirements provided by the law of their jurisdiction of origin; (b) have been duly translated into the language of the jurisdiction where they are to be recognised and enforced; (c) have been rendered by a competent state court or arbitral tribunal; (d) have been rendered in a proceeding where service of process was duly provided and the defendant had the opportunity to present its case; (e) be enforceable in their jurisdiction of origin; and (f) not violate public order principles of the jurisdiction in which recognition/enforcement is sought. Panama Convention. Arbitral awards that are not appealable according to the applicable law shall have the force of a final judgment. Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo Convention). Judgments must: (a) fulfil the formal requirements to be considered authentic in the jurisdiction of origin; (b) have been officially translated into the language of the jurisdiction where they are to be recognised/enforced; (c) have been legalised under the law of the jurisdiction where they are to be recognised/enforced; (d) have been rendered by a competent state court or arbitral tribunal; (e) have been rendered in a proceeding in which the plaintiff was duly summoned or subpoenaed; (f) have been rendered in a proceeding in which the parties had the chance to present their case; (g) be final or have become res judicata in the jurisdiction of origin; and (h) not be contrary to principles of public order of the jurisdiction where they are to be recognised/enforced. New York Convention. Arbitral awards must be preceded by a valid arbitration clause or arbitration agreement, which must have been made in writing. The MERCOSUL Accord on International Commercial Arbitration. Arbitral awards must be given in writing, be reasoned and completely decide the controversy. Arbitral awards shall contain: (a) date and place where they were rendered; (b) the grounds that support their conclusions; (c) a decision that encompasses all matters submitted by the parties; and (d) information on the arbitration s expenses. Havana Convention (Bustamante Code). Judgments rendered in one of the signatory jurisdictions may be executed in the others provided that: (a) they were rendered by a competent authority; (b) 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 recognition/execution is sought; (d) they are enforceable in their jurisdiction of origin; (e) they are duly translated to the language of the jurisdiction in which recognition/enforcement is sought; and (f) they fulfil the authenticity requirements set out by the laws of the jurisdictions involved. 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? Las Leñas Protocol. There is no explicit differentiation between recognition and enforcement, but it is possible to argue that such distinction is implicit. Panama Convention. There is no explicit differentiation between recognition and enforcement, but it is possible to argue that such distinction is implicit. Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo Convention). There is no explicit differentiation between recognition and enforcement, but it is possible to argue that such distinction is implicit. New York Convention. There is no explicit differentiation between recognition and enforcement, but it is possible to argue that such distinction is implicit. The MERCOSUL Accord on International Commercial Arbitration. There is no explicit differentiation between recognition and enforcement. Havana Convention (Bustamante Code). There is no explicit differentiation between recognition and enforcement. 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. Las Leñas Protocol. Proceedings for the recognition and enforcement of foreign judgments are disciplined by the law of the jurisdiction where such decision is to be recognised and enforced. Recognition and enforcement required by judicial authorities are to be carried out through rogatory letters and between central authorities designated by each signatory state. Panama Convention. Provides that the recognition/ enforcement of arbitral awards should be carried out in the same manner as judgments rendered by state courts, according to the law of the jurisdiction where they are to be recognised/enforced. Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo Convention). Proceedings for recognition/ enforcement, including discussions related to jurisdiction, must be governed by the law of the jurisdiction in which the decision is to be recognised/enforced. New York Convention. Proceedings for the recognition/ enforcement of arbitral awards must be carried out in accordance with the applicable rules of procedure laid out within the jurisdiction in which recognition/enforcement is sought. Conditions, fees and charges may not be substantially more onerous in comparison with the recognition/enforcement of domestic awards. The interested party should supply, when presenting its request for recognition, (a) the arbitral award (in its original version or a certified copy thereof), (b) the arbitral agreement/clause (in its original version or a certified copy thereof), and (c) if necessary, translations of said documents into the official language of the jurisdiction in which the award is to be recognised/enforced. The MERCOSUL Accord on International Commercial Arbitration. In what regards procedure for the recognition/ enforcement of awards, the document refers to the rules provided by other international conventions. Brazil ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

37 Pinheiro Neto Advogados Brazil Brazil Havana Convention (Bustamante Code). The interested party should present its request for recognition/enforcement before the competent state court. The opposing party and prosecuting attorney are heard within a term of 20 (twenty) days (through letters rogatory, if necessary), after which the court renders its ruling on the case. If recognition is granted, its execution is carried out as if it were a domestic judgment. 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? Las Leñas Protocol. Defendant may challenge recognition/ enforcement if, in the jurisdiction where the decision is to be recognised/enforced, (a) a previous decision was rendered, involving the same parties, facts and object, thus being incompatible with the judgment to be recognised/enforced, or (b) there is a pending procedure involving the same parties, facts and object. Panama Convention. 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 notified 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 jurisdiction 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 recognition/enforcement of the relevant decision would violate the public order of the jurisdiction in which it is to be recognised/enforced. Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo Convention). Recognition/enforcement may be challenged based on the non-fulfilment of any of the requisites described in question 3.1 above. New York Convention. Recognition/enforcement may be challenged on the same grounds provided by the Panama Convention, referred to above. The MERCOSUL Accord on International Commercial Arbitration. In what regards procedure for the recognition/ enforcement of awards, the document refers to the rules provided by other international conventions. Havana Convention (Bustamante Code). Recognition/ enforcement may be challenged based on the non-fulfilment of any of the requisites described in question 3.1 above. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Under Brazilian law, enforcement proceedings can only start after the recognition of the foreign decision is granted by the Brazilian Superior Court of Justice. The following list provides examples of some of the characteristics that may be found during the process of enforcement of a duly recognised foreign judgment: (a) imposition of fines in case the defendant fails to pay the debt after service of process is completed and/or refuses to present information related to assets that could serve for the payment of the debt; (b) attachment of the defendant s assets, according to a preferential order stipulated by Brazilian procedural law; (c) online attachment of the defendant s funds; and (d) in very specific and extraordinary circumstances, disregarding of the corporate entity and redirection of the enforcement proceedings towards the defendant s shareholders. It is relevant to mention that, in certain specific circumstances, parties interested in the recognition of foreign judgments and arbitral awards may file requests for interim relief during the course of recognition proceedings. Generally, such a request is granted when the interested party is able to demonstrate: (i) the probability (i.e., plausibility) of its right(s); and (ii) that there is a concrete risk of damage to said right(s) or to the practical result of the proceedings in matter. 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. On 18 March 2016, a new Code of Civil Procedure Federal Law No. 13,105, dated 16 March 2015 entered into force in Brazil, bringing about significant changes to the Brazilian civil procedure system and important improvements related to the recognition and enforcement of foreign judgments (articles 960 to 965). Among these relevant developments, it is worth mentioning the enactment of specific provisions pertaining to: (a) the concession of interim relief and/or provisional enforcement in the context of recognition proceedings (article 961, 3); and (b) the enforcement of foreign decisions including interlocutory decisions ordering the fulfilment of urgent measures (article 962). 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? Critical issues and red flags may vary significantly from case to case. Notwithstanding, certain points of attention may be considered commonplace when it comes to the recognition of foreign judgments in Brazil: seeking assistance and advice from Brazilian counsel when the foreign judicial or arbitral proceedings are still ongoing can help guarantee the future success of subsequent recognition proceedings and the actual enforcement of the decision in Brazil; parties interested in recognising and enforcing foreign judgments in Brazil should be aware that recognition proceedings might vary significantly in length and complexity, depending on each specific case; parties should keep in mind that, in Brazil: (a) recognition proceedings are centralised in one single judicial authority, as opposed to the decentralised model adopted in other jurisdictions; and (b) contested recognition proceedings i.e., recognition proceedings in which the responding party presents an objection to the recognition request are adjudicated by the Brazilian Superior Court of Justice s Special Court (as opposed to non-contested proceedings, which are subject to a simpler procedure and adjudicated directly by the President of the Court); and 34 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

38 Pinheiro Neto Advogados Brazil plaintiffs should be aware that, in recognition proceedings carried out in Brazil, respondents who fail to appear or present an answer will be represented by a member of the Brazilian Federal Public Defenders Office, and an objection raised by such representative will suffice for the recognition proceedings to be classified as contested. Renato Stephan Grion Pinheiro Neto Advogados Rua Hungria, São Paulo SP Brazil Tel: rgrion@pn.com.br URL: Guilherme Piccardi de Andrade Silva Pinheiro Neto Advogados Rua Hungria, São Paulo SP Brazil Tel: gpsilva@pn.com.br URL: Brazil Renato Stephan Grion is a partner at Pinheiro Neto Advogados, based in São Paulo. Mr. Grion concentrates his practice on commercial disputes before international and domestic arbitral tribunals, as well as on commercial mediations. He handles arbitration and mediation cases before virtually every major institution, including the ICC and other leading arbitration and mediation centres in Brazil and abroad. He also represents Brazilian and international clients in litigation in Brazil involving disputes over the enforcement of arbitral awards and arbitration agreements, as well as other transnational disputes. Guilherme Piccardi de Andrade Silva is an associate at Pinheiro Neto Advogados. He holds a degree in Law from the Pontifical Catholic University of São Paulo (Pontifícia Universidade Católica de São Paulo PUC/SP) and focuses his practice on arbitration, civil and commercial litigation and international law. Credibility, innovation and commitment are the hallmarks of Pinheiro Neto Advogados. Since 1942, through its commitment to excellence, the firm has played a prominent role in shaping the Brazilian legal and economic scenario. Pioneering and world-class services have made Pinheiro Neto Advogados one of the leading full-service law firms in Latin America, highly specialised in the four major areas of law Corporate, Tax, Labour and Litigation and their branches. With a network of 800 professionals, including around 400 lawyers, offices in São Paulo, Rio de Janeiro and Brasília, and correspondents throughout Brazil, the firm maintains a solid relationship with major international law firms. Named Latin American Firm of the Year in 2013 by the Global edition of Chambers & Partners, Pinheiro Neto Advogados has also been awarded Brazilian Firm of the Year (2009 and 2011) and Latin American Firm of the Year (2009, 2010 and 2014) by its Latin American edition. Pinheiro Neto Advogados was also named Brazil Firm of the Year for the 10 th consecutive year (2006 through 2015) by Who s Who Legal. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

39 Chapter 7 Canada Ryder Gilliland Blake, Cassels & Graydon LLP Daniel Styler 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 Reciprocal Enforcement of Judgments (U.K.) Act, RSO 1990, c R.6 Court Order Enforcement Act, RSBC 1996, c 78 Reciprocal Enforcement of Judgments Act, RSA 2000, c R-6 The Reciprocal Enforcement of Judgments Act, CCSM, c J20 The Enforcement of Foreign Judgments Act, SS 2005, c E Reciprocal Enforcement of Judgments Act, RSPEI 1988, c R-6 Reciprocal Enforcement of Judgments Act, RSNL 1990, c R-4 Relevant Jurisdiction(s) Corresponding Section Below United Kingdom Section 3 All Canadian provinces and territories with the exception of Québec Australia; Austria; Germany; United Kingdom; United States (Alaska, California, Colorado, Idaho, Oregon, Washington) All Canadian provinces and territories with the exception of Québec Australia; United States (Idaho, Montana, Washington) Australia; United States (Washington, Idaho) All foreign jurisdictions All Canadian provinces and territories with the exception of Québec United States (Washington) All Canadian provinces and territories with the exception of Québec Australia; United Kingdom Section 3 Section 3 Section 3 Section 3 Section 2 Section 2 Applicable Law/ Statutory Regime Canada-United Kingdom Civil and Commercial Judgments Convention Act, RSC 1985, c C-30 (implementing 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) International Conventions Implementation Act, RSA 2000, c I-6 The Canada-United Kingdom Judgments Enforcement Act, SS , c C-0.1 The Canada-United Kingdom Judgments Enforcement Act, CCSM, c J21 An Act Respecting the Convention Between Canada and the United Kingdom of Great Britain and Northern Ireland Providing for Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, SNB 1984, c R-4.1 Canada and United Kingdom Reciprocal Recognition and Enforcement of Judgments Act, RSNS 1989, c 52 Canada-United Kingdom Judgments Recognition Act, RSPEI 1988, c C-1 Canada and the United Kingdom Reciprocal Recognition and Enforcement of Judgments Act, RSNL 1990, c C-3 Relevant Jurisdiction(s) Corresponding Section Below United Kingdom Section 2 United Kingdom Section 2 United Kingdom Section 2 United Kingdom Section 2 United Kingdom Section 2 United Kingdom Section 2 United Kingdom Section 2 United Kingdom Section ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

40 Blake, Cassels & Graydon LLP Canada Applicable Law/ Statutory Regime The Enforcement of Judgments Conventions Act, CCSM, c E117 Civil Code of Québec, chapter CCQ-1991, Articles General Regime Relevant Jurisdiction(s) Corresponding Section Below France Section 2 All foreign jurisdictions Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Absent any applicable special regime, a foreign judgment would be recognised and enforced under common law in all Canadian provinces excluding Québec, which operates under a civil law regime. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? The difference between recognition and enforcement is illustrated 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. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 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 authenticity 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 courts of Canada, Great Britain and the United States. Otherwise, an action on a foreign judgment is often begun by a writ endorsed with a statement of claim for the amount of the judgment, and can be pursued by way of a motion for summary judgment. Judgment debtors should give due attention to the basic requirements for recognition and enforcement (see question 2.2). Canada The traditional common law rule on recognition and enforcement requires the foreign judgment to be for a debt or definite sum of money and to be final and conclusive. Orders must be clear and specific. Specificity is linked to the ability to remedy nonperformance 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 of its own jurisdiction 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 jurisdiction, such as the presence or consent of the defendant. There is no need for a real and substantial connection between the subject matter of the foreign dispute and the province in which recognition and enforcement is sought (Chevron Corp. v. Yaiguaje, 2015 SCC 42). 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 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 jurisdiction. 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. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? In addition to lack of jurisdiction, recognition/enforcement of a foreign judgment can be challenged on the following three grounds: fraud; denial of natural justice; or public policy. To establish an absence of jurisdiction, a defendant must negate all of the grounds that might give the foreign court jurisdiction. 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 fraud alleged must be clearly made out, and must be at the foundation of the impugned decision. Fraud going to jurisdiction 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 previously 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. A judgment obtained by tendering misleading evidence is unenforceable as against public policy. 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

41 Blake, Cassels & Graydon LLP Canada Canada contrary to the Canadian view of basic morality. The defence has a narrow application. To determine whether enforcement of a foreign judgment would 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. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 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 Gold Inc., [2006] 2 SCR 612). However, Canadian courts will not enforce judgments relating to foreign taxes or public law, or penal or quasi-criminal orders, such as contempt orders, from foreign jurisdictions. In addition, the subject matter aspect of recognition and enforcement of foreign judgments must be read in conjunction with the applicable legislative frameworks. For example, the legislation governing interjurisdictional support orders provides a mechanism for obtaining, enforcing or varying a support order in a reciprocating jurisdiction. As outlined above, the only prerequisite to recognise and enforce a foreign judgment is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied (Chevron Corp. v. Yaiguaje, 2015 SCC 42). 2.7 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? 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 judgment is not final and conclusive, a foreign judgment will not be recognised or enforced in Canada (see question 2.2). 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 jurisdiction 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. 2.8 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? 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 enforcement. 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 and 2.5). 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? 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 question 2.2) Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. While the common law facilitates a degree of uniformity across Canada, each Canadian province has authority to pass legislation 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 recognition of a foreign judgment vary across the provinces (see question 2.11 and section 3) What is the relevant limitation period to recognise and enforce a foreign judgment? 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 commencement 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 creditor seeks to enforce the judgment. This period generally ranges from two to ten years, beginning from the time that the judgment creditor under the foreign judgment discovered, using reasonable diligence, that the judgment debtor possessed assets in Canada. 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? 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 judgment has been given in a court in a reciprocating state, the judgment 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

42 Blake, Cassels & Graydon LLP Canada The 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 judgment 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 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 province s legislation for particulars. See also questions 2.2, 2.5 and 3.4, particularly with respect to the grounds on which the recognition and enforcement of a judgment can be challenged. The 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 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). Although the above is representative of the legislation enacted in other Canadian provinces, please consult the relevant province s legislation for particulars. See also question 2.4. Canada 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? Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): No. Court Order Enforcement Act (British Columbia): No. The Reciprocal Enforcement of Judgments Act (Manitoba): No. Reciprocal Enforcement of Judgments Act (Alberta): No. The Enforcement of Foreign Judgments Act (Saskatchewan): There is a distinction made between the concepts of recognition, registration and enforcement. Although the above is representative of the legislation enacted in other Canadian provinces, please consult the relevant province s legislation for particulars. See also question 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. Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): Any application for the registration in Canada of a judgment of a court of the United Kingdom must be made to the Federal Court of Canada, if relating to a matter within the competence of that Court, or to a court of a province or territory of Canada. The application 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 judgment 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 accompanied 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 generally be made without notice, but the application must be accompanied 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. 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? 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 territory 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 proceedings in sufficient time to enable him to defend the proceedings and, in either case, did not appear; (b) another judgment has been given by a court having jurisdiction in the matter in dispute prior to the date of judgment 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 otherwise 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; (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; ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

43 Blake, Cassels & Graydon LLP Canada Canada (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. 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 proceedings in sufficient time to enable him to defend the proceedings and, in either case, did not appear; (b) another judgment has been given by a court having jurisdiction in the matter in dispute prior to the date of judgment 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. 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). 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). Although the above is representative of the legislation enacted in other Canadian provinces, please consult the relevant province s legislation for particulars. See also question 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 or awards? Please provide a brief description. In January 2017, the Ontario Court of Appeal in Independence Plaza 1 Associates, L.L.C. v. Figliolini (2017 ONCA 44) clarified that the limitation period applicable to proceedings to enforce a foreign judgment in Ontario is two years. Although section 16(1) (b) of Ontario s Limitations Act, 2002 states that no limitation period applies to a proceeding to enforce an order of a court, the Court found that this rule does not apply to foreign judgments. Under section 5(1) of the Limitations Act, 2002, a claim s limitation period begins to run when it is discovered. As it applies to the enforcement of a foreign judgment, the Court in Figliolini stated that section 5(1) applies and a claim is discoverable and the limitation period begins to run, at the earliest, when the period to appeal the foreign judgment has expired or, if the foreign judgment is under appeal, the date the appeal is dismissed. The rationale behind this position is that the party seeking to enforce an order domestically would not have reasonably known that a proceeding in Ontario would be an appropriate means to seek to remedy its loss until that date. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? 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 enforcement of a judgment. 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 or award in your jurisdiction? 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 ought reasonably to have known that a legal proceeding was warranted (see questions 2.11 and 5.1), but clients should be aware of provincial differences. 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. Acknowledgment The authors would like to acknowledge the assistance of their colleague Galen Miller in the preparation of this chapter ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

44 Blake, Cassels & Graydon LLP Canada Ryder Gilliland Blake, Cassels & Graydon LLP 199 Bay Street, Suite 4000 Commerce Court West Toronto, ON M5L 1A9 Canada Daniel Styler Blake, Cassels & Graydon LLP 199 Bay Street, Suite 4000 Commerce Court West Toronto, ON M5L 1A9 Canada Tel: URL: Ryder Gilliland is a lawyer specialising in arbitration and cross-border litigation. He is a seasoned litigator who has appeared at all levels of court in Canada. Ryder has also acted in international and national arbitration proceedings, both ad hoc arbitrations and under institutional rules including ADR, ICC and AAA/ICDR. Ryder has received numerous professional recognitions, including being recognised by Lexpert in 2010 as one of Canada s leading lawyers under 40. Tel: daniel.styler@blakes.com URL: Daniel has a broad civil and commercial litigation practice, with a focus on business crimes. He first joined Blakes as a summer student in 2013 and later completed his articles at the firm in 2014/2015. At law school, Daniel was recognised for outstanding academic achievement in the areas of contract law and family law, and was also awarded the Blakes Scholar Award and the Dean s Letter Recognizing Cumulative Overall Excellence for ranking in the top seven per cent of the class of Canada 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, Bahrain, Beijing (and associated offices in Al-Khobar and Shanghai), the firm s strength across industry sectors and propensity 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 international 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. Blakes litigators also work to help reduce litigation risk and the group has an extensive background in domestic and international commercial arbitration, and mediation. For more information on our firm and our Litigation & Dispute Resolution Group, visit ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

45 Chapter 8 China Melvin Sng Linklaters LLP Justin Tang 1 Country Finder 2 General Regime 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. 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? Applicable Law/Statutory Regime Civil Procedure Law ( CPL ) CPL and bilateral treaties 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 ( Hong Kong Arrangement ) Arrangement between the Mainland and the Macau Special Administrative Region on the Mutual Recognition and Enforcement of Civil and Commercial Judgments ( Macau Arrangement ) Provisions of the Supreme People s Court on Recognition and Enforcement of Civil Judgments Issued by Courts in Taiwan ( Taiwan Provisions ) Relevant Jurisdiction(s) Jurisdictions which have no bilateral treaties or conventions with China Jurisdictions which have concluded bilateral treaties or conventions with China Corresponding Section Below Section 2 Section 2 Hong Kong Section 3 Macau Section 3 Taiwan Section 3 There are two broad regimes for the recognition and enforcement of foreign judgments in Mainland China. Article 281 of the CPL allows for the recognition and enforcement of foreign judgments either in accordance with specific international treaties with the jurisdiction in question or under the principle of reciprocity. As of January 2017, China has concluded such bilateral treaties with approximately 36 countries. Judgments from Hong Kong, Macau and Taiwan can be recognised and enforced in Mainland China under reciprocal enforcement arrangements which China entered into with Hong Kong, Macau and Taiwan in 1998, 2006 and 2006 respectively. The recognition and enforcement of Hong Kong, Macau and Taiwan judgments are subject to judicial interpretations issued by the Supreme People s Court ( SPC ). 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? To be eligible for recognition and enforcement in Mainland China, the foreign judgment must be final and conclusive as to its legal effects (Article 281, CPL). In addition, it is a condition for recognition and enforcement under most bilateral treaties concluded by China that the foreign judgment must be given by a foreign court which has jurisdiction over the case to which the judgment relates, and that the defendant against whom the foreign judgment is given had proper notice of the proceedings. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Recognition and enforcement of foreign judgments are two distinct, separate concepts under Chinese law. Under Article 546 of the SPC s Interpretations on Application of the Civil Procedure Law ( SPC Interpretations ), a judgment creditor may apply to a Chinese court for both recognition and enforcement of a foreign judgment or, alternatively, for recognition only ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

46 Linklaters LLP China 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Generally speaking, an application for recognition (and enforcement) of a foreign judgment may be made to a Chinese court by the party in whose favour the foreign judgment was given and the steps to be taken include: 1. The applicant applies to a Chinese court for recognition (and enforcement) of a foreign judgment. The application shall include the original or a certified true copy of the foreign judgment in question and, if not in Chinese, its Chinese translation. 2. The Chinese court will serve the application on the respondent and then examine the application (with or without a full oral hearing). 3. If the Chinese court decides to recognise and enforce the foreign judgment, it will issue a decision and serve an enforcement notice on the judgment debtor. 4. If, after a Chinese court has issued an enforcement notice, the respondent fails to satisfy the judgment, the Chinese court enforcement officers can take immediate, compulsory enforcement actions against the judgment debtor s assets in Mainland China. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The grounds for refusing recognition or enforcement of a foreign judgment are set out in the CPL and the bilateral treaties entered into by China. In summary, a Chinese court may refuse to enforce a foreign judgment if it is of the view that: 1. the foreign judgment is contrary to the fundamental principles of Chinese law or the sovereignty, national security or public interests of China; 2. the foreign judgment is not final as to its legal effects; 3. the foreign judgment was given by a foreign court which did not have jurisdiction over the case; 4. the defendant against whom the foreign judgment was given did not have proper notice of the proceedings in the foreign court; 5. the foreign judgment relates to a subject matter in respect of which a Chinese court has rendered a judgment or recognised a judgment rendered by a third country; or 6. the limitation period of two years for applying for enforcement of a foreign judgment (unless otherwise specified in applicable bilateral treaties) has expired. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? The recognition of foreign divorce judgments in Mainland China is governed by the SPC s Provisions on the Procedure of Chinese Citizens Application for Recognising and Enforcing Foreign Divorce Judgments. 2.7 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? Certain bilateral treaties entered into by China provide that a Chinese court may refuse recognition or enforcement of a foreign judgment if: 1. it has rendered a judgment on the same subject matter between the same parties; 2. there are ongoing proceedings in Mainland China on the same subject matter between the same parties; or 3. it has recognised a judgment rendered by a third country on the same subject matter. 2.8 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? Under a number of bilateral treaties, a foreign judgment will not be recognised or enforced by a Chinese court if the Chinese court has rendered a judgment on the same subject matter between the same parties. There is no provision which expressly permits a Chinese court to refuse recognition or enforcement of a foreign judgment in cases where the Chinese court has rendered a prior judgment on a similar subject matter but between different parties. Under Article 282 of the CPL, a foreign judgment will not be recognisable or enforceable in Mainland China if its recognition or enforcement contravenes the fundamental principles of Chinese law. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? There are no provisions in the CPL or the bilateral treaties entered into by China that expressly govern this scenario. The recognition and enforcement of such foreign judgments would be subject to the same process and principles set out above Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There are no material differences between the rules and procedures of different provinces in Mainland China in relation to the recognition and enforcement of foreign judgments. However, although Hong Kong and Macau are special administrative regions under the sovereignty of China, their legal systems and procedures are different from those of Mainland China. Hong Kong and Macau judgments can be recognised and enforced in Mainland China in accordance with the Hong Kong Arrangement and Macau Arrangement respectively What is the relevant limitation period to recognise and enforce a foreign judgment? China Under Article 239 of the CPL and Article 547 of the SPC Interpretations, the limitation period for applying for enforcement of a foreign judgment is two years. However, a different limitation period may be prescribed under certain bilateral treaties. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

47 Linklaters LLP China China If the Applicant only applies for recognition, but not enforcement, of a foreign judgment in Mainland China, the two-year limitation period for enforcement will start to run from the date on which the recognition decision of a Chinese court becomes effective (Article 547, SPC Interpretations). 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? Hong Kong judgments can be recognised and enforced in Mainland China in accordance with the Hong Kong Arrangement. Under Article 1 of the Hong Kong Arrangement, the conditions for recognition and enforcement are: 1. the Hong Kong judgment must be in relation to a commercial contract entered into after 1 August 2008; 2. the Hong Kong judgment must require the payment of a sum of money in a civil or commercial case and be final and enforceable; and 3. the commercial contract to which the judgment relates must provide for the exclusive jurisdiction of the Hong Kong courts. The recognition and enforcement of Macau judgments in Mainland China are governed by the Macau Arrangement which requires that, for a Macau judgment to be recognised and enforced, it must be given in a civil or commercial case, including labour disputes. To be enforceable in Mainland China, a Macau judgment must also be legally effective and for the payment of a sum of money (Article 3, Macau Arrangement). Taiwan judgments are recognisable and enforceable in Mainland China pursuant to the Taiwan Provisions. Under Article 2 of the Taiwan Provisions, for a Taiwan judgment to be recognised and enforced in Mainland China, it must be civil in nature and legally effective. This extends to, for example, judgments or orders given by a court in Taiwan for payment of civil damages in criminal cases. 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? 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 judgment prior to seeking enforcement thereof, or alternatively for both recognition and enforcement in the same application (Article 3, Taiwan Provisions). 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 under the Hong Kong Arrangement 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 ordinarily resident, or where the judgment debtor s properties are located (Article 4, Hong Kong Arrangement). When making the application, the applicant must produce the following documents (Articles 6 and 7, Hong Kong Arrangement): 1. a written application; 2. a copy of the judgment sealed by the Hong Kong court which gave the judgment and a Chinese translation thereof (if applicable); 3. a certificate issued by the Hong Kong court confirming that the judgment is final and enforceable; and 4. the applicant s identification documents. The Macau Arrangement provides for similar requirements and procedure with respect to an application for recognition and enforcement of a Macau judgment in Mainland China. Under the Taiwan Provisions, an application for recognition and enforcement of a Taiwan judgment in Mainland China must be lodged with the Intermediate People s Court either at the place where the judgment creditor or judgment debtor is domiciled or ordinarily resident or where the judgment debtor s properties are located (Article 4, Taiwan Provisions). Such an application must be filed within two years after the expiry of the period specified for the performance of the Taiwan judgment and must include the following documents (Articles 7 and 9, Taiwan Provisions): 1. a written application; 2. the original copy of the Taiwan judgment or its certified true copy; 3. documentary proof that the Taiwan judgment is true and legally effective; and 4. for default judgments, documentary proof that the party against whom the Taiwan judgment was given had been summoned by the Taiwan court. 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? The grounds for refusing recognition and enforcement of a Hong Kong judgment are set out in Article 9 of the Hong Kong Arrangement, which include: 1. the choice of court agreement which provides for the exclusive jurisdiction of the Hong Kong courts is invalid under Hong Kong law; 2. the Hong Kong judgment relates to a subject matter in respect of which the Chinese courts have exclusive jurisdiction under Chinese law; 3. the Hong Kong judgment has been wholly satisfied; 4. the Hong Kong judgment has been obtained by fraud; 5. a judgment or arbitral award has been rendered on the same cause of action between the parties by a Chinese court, a foreign court or an arbitral tribunal, and the judgment or arbitral award has been recognised or enforced by the Chinese court where enforcement of the Hong Kong judgment is sought; 6. the party who was absent from the court hearing(s) and against whom the Hong Kong judgment was given had not been summoned according to Hong Kong law; 7. the party against which the Hong Kong judgment was given had been summoned according to Hong Kong law but had not been given proper time to defend the proceedings; and 8. the Chinese court considers that the enforcement of the Hong Kong judgment is contrary to the social or public interests of Mainland China ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

48 Linklaters LLP China Under the Macau Arrangement, a Macau judgment may be refused recognition and enforcement in Mainland China if: 1. the Macau judgment relates to a subject matter in respect of which the Chinese courts have exclusive jurisdiction according to Chinese law; 2. there is ongoing litigation in the Chinese courts commenced prior to the issuance of the Macau judgment and the Chinese courts have jurisdiction over that litigation; 3. a judgment or arbitral award has been rendered on the same matter by a court or an arbitral tribunal, and that judgment or arbitral award has been recognised or enforced by the Chinese court where enforcement of the Macau judgment is sought; 4. the party against whom the Macau judgment was given had not been summoned or was not properly represented in the Macau court proceedings; 5. the Macau judgment has not become legally effective or its enforcement has been stayed for retrial under the law of Macau; or 6. the enforcement of the Macau judgment is contrary to the principles of Chinese law or the social or public interests of Mainland China. (Article 11, Macau Arrangement.) Pursuant to the Taiwan Provisions, a Chinese court can refuse recognition and enforcement of a Taiwan judgment on one or more of the following grounds (Article 15, Taiwan Provisions): 1. the Taiwan judgment relates to a subject matter in respect of which the Chinese courts have exclusive jurisdiction; 2. the parties to the Taiwan judgment 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 under the arbitration agreement has been waived; 3. a judgment has been rendered on the same dispute by a Chinese court in Mainland China; 4. a judgment has been rendered by a court in Hong Kong, Macau or a foreign country on the same dispute and that judgment has been recognised or acknowledged by the Chinese court; 5. for default judgments, the party again whom the Taiwan judgment was given had not been summoned or was not properly represented in the Taiwan court proceedings; and 6. the recognition of the Taiwan judgment is contrary to the principles of Chinese law including the One China principle or the social or public interests of Mainland China. A challenge to recognition and/or enforcement of a foreign judgment in Mainland China (including a court judgment from Hong Kong, Macau and Taiwan) can be made at any time after the application for recognition (and enforcement) has been served on the judgment debtor by a Chinese court. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? 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: (i) compelling the judgment debtor to disclose its assets; (ii) making enquiries with the relevant authorities or organisations for information concerning the judgment debtor s assets; and/ or (iii) 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, the 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); and 7. a media announcement of the judgment debtor s failure to perform its obligations under the judgment (Article 255, CPL). 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. On 9 December 2016, the Nanjing Intermediate People s Court issued a decision which recognised and enforced a civil judgment rendered by the Singapore High Court. It was the first reported decision in which a Chinese court recognised and enforced a foreign judgment on the basis of reciprocity (otherwise than pursuant to a bilateral treaty for mutual recognition and enforcement of judgments). This decision indicates the Chinese courts increased preparedness to recognise and enforce judgments from other jurisdictions, and in particular those in which the domestic courts have previously enforced judgments from Chinese courts. China 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? No, there are no critical issues that need to be flagged. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

49 Linklaters LLP China Melvin Sng Linklaters LLP 10/F, Alexandra House 18 Chater Road, Central Hong Kong Justin Tang Linklaters LLP 10/F, Alexandra House 18 Chater Road, Central Hong Kong China Tel: URL: Tel: URL: Melvin is the Head of the Dispute Resolution practice in Asia. He has broad commercial litigation and arbitration experience and regularly advises many of the global financial institutions and corporations on their most sensitive and complex disputes and regulatory investigations. He also co-heads the Restructuring and Insolvency practice in Asia and was the lead partner advising the Liquidators of Lehman Brothers and MF Global. Justin is a Partner in the Dispute Resolution department in Asia. He has significant experience in advising on cross-border commercial disputes. His practice covers litigation, arbitrations and regulatory investigations with a particular focus on China-related disputes. His recent experience includes acting for an international forestry company in London-seated ICC arbitrations against Chinese counterparties and related enforcement proceedings; a global investment bank in London court proceedings against Chinese counterparties involving pledged assets in China; a group of lenders in a syndicated loan for the recovery from Chinese counterparties of a loan worth over US$500m; and a Hong Kong-listed bank in highprofile unfair prejudice proceedings before the Hong Kong courts proceedings involving a multi-million US dollar claim regarding trading in convertible bonds. As a global law firm, we support our clients in achieving their strategies wherever they do business. We draw on our expertise and resources to help them to pursue opportunities and manage risk across industries and markets around the world. Technical skill, commercial experience and outstanding service are underpinned by a single management structure across the firm to help build valuable and lasting client relationships. We now have around 350 lawyers based in the key Asian centres of Beijing, Shanghai, Hong Kong, Tokyo, Seoul, Singapore and Bangkok. As part of our integrated alliance with Australian law firm Allens, we also support clients actively in Australia, Vietnam and Mongolia. To further enhance the integrated nature of our alliance, we also formed an association with Widyawan & Partners (a leading Indonesian law firm) to provide clients with a full-service Indonesian law capability. In addition, we have a best-friend relationship with Indian law firm Talwar Thakore & Associates (TT&A). We work closely with these firms to provide seamless advice to clients as a single team ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

50 Chapter 9 Cyprus Montanios & Montanios LLC Yiannis Papapetrou 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 Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (the Brussels I Regulation (recast) ) Council Regulation (EC) No 44/2001 of 22/12/2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30/10/2007 (the Lugano Convention ) Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims Convention of 01/02/1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the Hague Convention ) Relevant Jurisdiction(s) All countries within the EU All countries within the EU Switzerland, Norway and Iceland All countries within the EU (excluding Denmark) All Member States of the EU (apart from Denmark) and Mexico Corresponding Section Below Please see the EU chapter in this guide Please see the EU chapter in this guide Please see the EU chapter in this guide Please see the EU chapter in this guide Please see the EU chapter in this guide Applicable Law/ Statutory Regime The Judgments of Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000) and the relevant bilateral treaty in relation to each country Certain Judgments of Courts of Commonwealth Countries (Reciprocal Enforcement Law), Cap. 10 Common law 2 General Regime Relevant Jurisdiction(s) Countries with which Cyprus has concluded or is connected with an agreement for mutual recognition and enforcement of judicial decisions, those being: Belarus; Bulgaria; China; Czech Republic; Egypt; Georgia; Greece; Hungary; Poland; Russia; Serbia; Slovakia; Slovenia; Syria; and Ukraine Judgments of superior courts of the United Kingdom All countries to which none of the above specific laws/ regulations apply Corresponding Section Below Section 3 Section 3 Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? 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: Enforcement of EU Judgments In 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

51 Montanios & Montanios LLC Cyprus Cyprus 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 10/01/2015. Under Regulation 805/2004, a regime was established for European enforcement orders for claims which are uncontested 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 recognised 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 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 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 judgment 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 judgments of superior courts of the United Kingdom. Since the accession of Cyprus to the European Union in 2004 and the use of the Brussels Regulations for the recognition and enforcement of judgment of the courts of the United Kingdom, Cap. 10 is used less frequently. In a recent judgment of a first instance court, it was accepted that Cap. 10 could be used to recognise and enforce a judgment 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 have not acceded to the European Union (judgment dated 16/10/2015 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 counterclaim 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. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? 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 considered final and conclusive. A judgment can be final and conclusive even if an appeal is pending before a higher court of the foreign country. In such cases, 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 judgment 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. Further, the foreign judgment must have been issued by a court which had jurisdiction to give judgment. For a claim on a foreign judgment to be entertained, the Cypriot court must have jurisdiction over the judgment debtor. The writ of summons must be served upon the judgment debtor in Cyprus or leave must be obtained for service out of jurisdiction. Cyp 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 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 recognition is merely to defend a claim in Cyprus on the same or a connected matter. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 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 ordinary action against a defendant. However, the judgment creditor 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 48 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

52 Montanios & Montanios LLC Cyprus rus 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. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The only defence under the common law that would be open to the defendant in such an action would be that the foreign judgment was: (a) not final and conclusive (see question 2.2 above); (b) issued by a court which had no competent jurisdiction; the issue on whether the foreign court had international jurisdiction 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 judgment 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 substantial 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 judgment which is earlier in time will prevail. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 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 (d) the European Convention on the Recognition and Enforcement on 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 No 101/1987 and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 which was ratified by Law No 84/ 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? (a) (b) 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. 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 and 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 immaterial 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. Cyprus There are particular regulations of the European Union which apply to different subject matters, such as matrimonial and insolvency matters. These include Regulation (EC) No 1346/2000 on Insolvency proceedings, Regulation 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility and Regulation 4/2009 of 18/12/2008 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Co-operation 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 2.8 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? 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 circumstances. 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. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

53 Montanios & Montanios LLC Cyprus Cyprus 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? 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 reexamined 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 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There are no differences in the rules and procedure of recognition and enforcement between the various districts in the Republic of Cyprus What is the relevant limitation period to recognise and enforce 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 judgment 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 conclusive 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 application to recognise and enforce the judgment under this Law must be accompanied by an affidavit which should exhibit a certified 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. The relevant limitation period for an action on a foreign judgment at common law would be, according to the Limitation Law of 2012 (Law 66(I)/2012), 15 years from the date when the judgment became final. For any foreign judgments issued before 31/12/2015, time for the purposes of limitation starts running on 01/01/ 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? 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? As mentioned in question 2.3 above, only once a foreign judgment is put on the same footing as a Cypriot judgment can measures 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 judgment without the need to request simultaneous enforcement. 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. 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. 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 bilateral treaty sets out the different documentation that needs to accompany 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 sufficient 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 50 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

54 Montanios & Montanios LLC Cyprus 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 recognising and enforcing the foreign judgment commences with an ex parte application (that is without notice) supported by an affidavit. 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? The judgment debtor can oppose the recognition and enforcement 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 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. 3. by sequestration of immovable property; 4. by attachment of property; and 5. by examining the judgment debtor in respect of his financial 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 creditor 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 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. Cyprus 4 Enforcement No, there have not been any noteworthy recent legal developments in this area. 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Once a foreign judgment is recognised, all methods for execution 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; 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? It is important that care is taken to present the necessary documentation 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. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

55 Montanios & Montanios LLC Cyprus Yiannis Papapetrou Montanios & Montanios LLC Diagoras House 16 Pantelis Catelaris Street 1097 Nicosia Cyprus Cyprus Tel: URL: Yiannis Papapetrou read law at the University of Warwick, England and was awarded an LL.B. Honours Degree in 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 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 multijurisdictional element and with particular emphasis on commercial, maritime and admiralty law. Yiannis also has experience in the area of international 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 ( 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, corporate, 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 barrister-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 practice 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

56 Chapter 10 Czech Republic Richard Gürlich Gürlich & Co., attorneys-at-law Kamila Janoušková 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 Act No. 91/2012 Sb., on Private International Law, as amended Act No. 104/2013 Sb., on International Judicial Cooperation in Criminal Matters, as amended International agreements and law of the European Union 2 General Regime Relevant Jurisdiction(s) Private law matters; applies to all jurisdictions unless relevant international or European law provides otherwise Criminal law matters; applies to all jurisdictions unless relevant international law provides otherwise The European Union (related issues are not discussed in detail within this chapter) and international agreements bind their parties and therefore limit their jurisdiction to them (besides members of the EU, the Czech Republic has concluded other relevant treaties, for example with Tunisia) Corresponding Section Below Section 2 Section 2 Section What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? There are no special requirements regarding the form or substance of foreign judgments in order to be recognised and enforced in the Czech Republic. Judgments or other decisions of foreign authorities as well as foreign judicial settlements and foreign notary or other public documents may be effective in the Czech Republic if they have come into legal force (which has been confirmed by the appropriate foreign authority) and if they have been recognised by the Czech public authorities (please see question 2.5 for decisions which cannot be recognised). 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Recognition and enforcement usually represent separate phases; however, sometimes the limitation between them is not exactly clear (for example, in property matters the public authorities sometimes take the foreign decision into account which represents both the recognition and enforcement). Nevertheless, recognition of a judgment is a process during which the court or other administrative body examines if the foreign judgment satisfies conditions in order to be effective in the Czech Republic. Enforcement of a judgment is also a process, resulting in the coercion of a person having a debt or other obligation to fulfil such a debt or obligation as it stems from an enforceable judgment, provided it is not carried out voluntarily. This process usually follows the recognition. 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? The fundamental legal framework in private law matters is provided for by Act No. 91/2012 Sb., on Private International Law, as amended (hereinafter referred to as the PIL ). The fundamental legal framework in criminal law matters is provided for by Act No. 104/2013 Sb., on International Judicial Cooperation in Criminal Matters, as amended (hereinafter referred to as the IJCCM ). 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Foreign judgments in private matters are recognised on the basis of a special recognition judgment. Such a judgment is delivered by district courts, i.e. the general court of the party which proposes the recognition or in whose district any fact which is significant for recognition has occurred or could occur, provided the conditions for recognition are met (please see question 2.5 for further details). According to PIL, the recognition of a foreign judgment regulating property matters is not announced by means of such a special ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

57 Gürlich & Co., attorneys-at-law Czech Republic Czech Republic judgment. The recognition is represented by the fact that the Czech public authorities take the judgment into account as if it was their own decision. In criminal matters, proceedings are initiated based on a proposal by the Ministry of Justice or on request of a foreign country to detain a person, against whom the judgment is issued, in custody. The recognition proceedings take place before regional courts. If all of the requirements necessary to recognise a foreign judgment are fulfilled (please see question 2.5 for further details), the court issues a judgment on recognition. In certain cases, the court is allowed to adjust the penalty in accordance with Czech law. Please see question 4.1 for further details about the enforcement procedure. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? In private matters, it is not possible to recognise a final foreign judgment, if: a) the matter is subject to the exclusive jurisdiction of the Czech courts, or if the proceedings could not have been carried out by any foreign authority provided that the provisions concerning the jurisdiction of the Czech courts have been applied in the foreign jurisdiction, unless the participant against whom the judgment is made has voluntarily submitted the case to the jurisdiction of such foreign authority; b) there are ongoing proceedings before a Czech court with regard to the same legal matter, which were commenced prior to the proceedings abroad; c) the matter has already been decided before a Czech court and a valid judgment was issued by a Czech court, or if a valid foreign judgment has already been recognised in the Czech Republic; d) a participant in the proceedings, with regard to whom the judgment is to be recognised, was not allowed by procedures of a foreign authority to participate in the proceedings before this foreign authority, especially if no summons or the motion to commence the proceedings was delivered to the participant; e) such recognition would clearly contravene public order; or f) reciprocity has not been guaranteed (not required if Czech citizens or Czech legal entities are not concerned by the foreign judgment). Provided the court refuses to recognise the judgment, an appeal may be filed within 15 days. Enforcement of the judgment may also be challenged within 15 days, provided there are grounds indicating the enforcement should not be ordered (for example if a debt is already paid off), new evidence or statements may be claimed. In criminal matters, the judgment cannot be recognised on the following grounds: a) the requirements for recognition were not fulfilled, those being: i. an international agreement safeguards the procedure or reciprocity is guaranteed; ii. the punishable act fulfils the requirements for a criminal offence according to the applicable Czech legislation; iii. the judgment was issued in proceedings which respected human rights and basic freedoms; iv. the punishable act is not solely of political or military nature; v. the limitation period for enforcement of such punishment has not expired yet; vi. there were no previous proceedings conducted in the Czech Republic in the same matter which resulted in the delivery of a judgment or otherwise a termination of proceedings, unless the decision is null and void; vii. the Czech Republic did not recognise a decision of another country in the same matter; viii. the offender is held liable for criminal offences in the Czech Republic; ix. the offender is a citizen of the Czech Republic (exceptions apply); and x. the person does not enjoy immunities or is not excluded from the jurisdiction of public authorities; b) the offender against whom the judgment was issued died or was declared dead; or c) it is obvious that enforcement of the foreign judgment would be impossible, especially if the offender s stay is unknown. A decision on recognition may be challenged by an appeal within three days. Enforcement of an effective judgment cannot be contested any further. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Except for the above-mentioned, there are several separate areas regulated by PIL which are governed by special provisions, such as the judgment on limitation of legal capacity and guardianship (recognised without any further proceedings), the judgment on person declared dead or missing (recognised without any further proceedings), etc. In criminal matters, IJCCM makes special provisions, for example, on recognition of judgments on compensatory measures for imprisonment, monetary sanctions, seizure of assets, suspended sentence, etc. The particular punishment may be modified in order to comply with the Czech system. 2.7 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? Private matters: a) PIL states that if a Czech court has already issued a valid judgment about the same legal relations or if the valid judgment of the body of a third state has already been recognised in the Czech Republic, it is not possible to recognise a final and conclusive foreign judgment. b) If there are ongoing proceedings before a Czech court with regard to the same legal relations and if said proceedings commenced prior to the proceedings abroad, it is not possible to recognise a final and conclusive foreign judgment. Criminal matters: a) If a Czech court has already issued a valid judgment about the same legal matter or if the valid judgment of the body of a third state has already been recognised in the Czech Republic, it is not possible to recognise a final and conclusive foreign judgment. b) Previous proceedings in the same matter (terminated even without delivery of a judgment) create an obstacle causing an inability of a court to recognise the judgment; however, ongoing proceedings do not limit the recognition ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

58 Gürlich & Co., attorneys-at-law Czech Republic 2.8 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? The only limitation to recognition of such judgment is a clear contravention of public order; similar decisions concerning different parties do not create an obstacle. PIL states that the provisions of any foreign body of laws which are supposed to be used based on provisions of PIL cannot be applied if the effects of any such application would clearly contravene Czech public order. It is also not possible to recognise any foreign judgments, foreign court settlements, foreign notary or other public documents or foreign arbitration judgments or to implement any procedural acts requested from abroad or to recognise any legal matters or facts which have arisen abroad or according to a foreign body of laws on the same grounds, i.e. if they contravene the public order. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? a) Section 14 of PIL sets forth the basic regulation for recognition of foreign judgments. For further information, please see section 2 of this chapter. b) Section 17 (and the following) of PIL provides regulation for proceedings on recognition of foreign judgments which (on the basis of the EU legislation or an international agreement) require a declaration of ability in order to be enforced in the Czech Republic. c) Finally, there is a third group of judgments which are automatically recognised and enforceable, i.e. directly, without any declaration or decision issued by the Czech authorities (such as a European Enforcement Order, etc.). Special regimes set forth by international agreements may be applied, too. For example, the International Agreement on Legal Aid with Tunisia (40/1981 Coll.) may be applied. Judgments or other decisions by Tunisia are recognised, provided they fulfil the requirements set out in the Agreement, i.e. if they concern private law matters (commercial, civil, family or personal status matters), criminal law matters or if they represent an amicable solution of a dispute reached before Tunisian public authorities and are able to be recognised and enforced in the Czech Republic (please see question 3.4 for further details). Czech Republic The Czech courts do not examine the content, i.e. interpretation of the Czech law by a foreign court provided the judgment fulfils the requirements to be recognised and does not contravene the public order. Please see questions 2.5 and 2.8 for further details Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No, there are no states/region/provinces with a different set of rules What is the relevant limitation period to recognise and enforce a foreign judgment? The statute of limitation is governed by the same provisions as the particular right or crime in question. With regard to private law, the length of the limitation period is usually three years. Different rules may apply in cases expressly stipulated by the applicable legislation. The limitation period usually begins from the date on which the right could be exercised for the first time. A right may be exercised for the first time once the entitled person becomes aware of the circumstances or when he or she should and could have learnt about them. With regard to criminal law matters, the limitation period depends on the particular crime or the punishment given. 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? According to PIL, there are three regimes governing recognition of foreign judgments: 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? No; the definition for legal relationships with, for example, Tunisia, is the same as described in question 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. A request for recognition of a decision issued in Tunisia may be filed by the parties to a dispute to the public authority of the Czech Republic having relevant jurisdiction, or to the public authority which delivered the decision in question in the first instance. The request must be accompanied with a verified copy of the decision, confirmation of legal force and enforceability, confirmation that the person in whose absence the decision was delivered was properly and timely summoned and verified translation of all the documents, including the request itself. A request for enforcement may be filed together with the request for recognition. In order for the process to be successfully completed, the public authority reviews only whether all the formal requirements for the request have been fulfilled and whether there are no obstacles to recognise and enforce the decision (please see question 3.4 for further details). 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? In private matters, it is possible to recognise a final Tunisian decision only if: a) the decision was issued by a public authority having relevant jurisdiction; b) the decision has legal force and it is enforceable according to the Czech legal order; ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

59 Gürlich & Co., attorneys-at-law Czech Republic Czech Republic c) recognition or enforcement shall not impair sovereignty, safety, public order or other basic rules of the legal order of the Czech Republic; d) the Czech Republic did not issue a decision on the same issue having legal force; and e) the person against whom the decision is issued attended the court hearing, or if not, the person was properly and timely summoned (public notice is not regarded as a proper and timely summons). 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Enforcement of judgments in private matters is generally regulated by Act No. 99/1963 Sb., Civil Procedure Code, as amended, and Act No. 120/2001, on the Bailiffs and Enforcement Procedure, as amended. On the basis of these, either a court or a bailiff may enforce a judgment. Enforcement is ordered by a special decision. A judgment imposing a monetary payment may be enforced by various means, especially by seizure of property, mandatory deductions from wage, sale of movable or immovable assets or forced administration of a business. Enforcement of a judgment imposing an obligation other than monetary payment depends on the nature of the imposed obligation. It can be carried out especially by means of compelled provision of works or other performances. Enforcement of judgments in criminal matters is carried out especially under provisions of Act No. 141/1961 Sb., Criminal Procedure Code, as amended, and other relevant legislation and depends on the nature of the particular punishment. The particular court having jurisdiction over the matter in question safeguards the enforcement (for example, sets the conditions of payment for monetary punishments or sets the place, time or manner in which the punishment will be carried out). 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. There was no significant legal development relevant to the recognition and enforcement of foreign judgments in the last 12 months. The amendment of relevant acts according to the 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 instruments in matters of succession on creation of European Certificate of Succession, was made. The European Certificate of Succession and the proceedings related to its issuance were regulated. The Regulation is directly effective; however, the Czech legislation was amended to ensure legal certainty and regulate some related issues (such as procedure, fees, etc.). Following the recent legal changes in the Czech substantial private law (its whole recodification), it is inevitable that the new Civil Procedure Code will also be adopted. The timeframe for such amendment is, however, not yet certain. 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? As both the process of recognition and enforcement before Czech courts may be very time-consuming, we would definitely recommend the client to start the process of recognition as soon as possible. In the same way, having time management in mind with regard to enforcement proceedings, using the services of bailiffs may be recommended over the enforcement procedures carried out by the court as these may be considerably slower because the courts deal with a broader agenda ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

60 Gürlich & Co., attorneys-at-law Czech Republic Richard Gürlich Gürlich & Co., attorneys-at-law Politických vězňů , Prague 1 Czech Republic Tel: gurlich@akrg.cz URL: JUDr. Richard Gürlich is the managing partner and founder of GÜRLICH & Co. He is a graduate of the Law Faculty of Charles University in Prague. He is a member of the Czech Bar Association and The International Association for Contract & Commercial Management (IACCM). He has extensive experience in public procurement in the European Union, corporate law and business transactions. His expertise also includes legal matters relating to real estate (i.e. arrangement of developer projects, property transfers, lease and sublease agreements, etc.) and labour law. Kamila Janoušková Gürlich & Co., attorneys-at-law Politických vězňů , Prague 1 Czech Republic Tel: janouskova@akrg.cz URL: Kamila Janoušková is an associate at GÜRLICH & Co. She graduated from the Law Faculty of Charles University in Prague. She is a member of the Czech Bar Association. Her areas of expertise include, for example, bankruptcy, civil law, civil procedure, real estate or business corporations. Czech Republic GÜRLICH & Co. is a relatively young but quickly developing law firm with expertise in various branches of law. Its main specialties include public procurement in the European Union, intellectual property, real estate, and corporate and business law. Our law firm also organises seminars and lectures on the issues of intellectual property, public procurement, and the Civil Code. Our law firm is a member of the International Lawyers Network (AEA) and as such, we are part of an extensive network of independent law firms who work together on cross-border transactions and multi-jurisdictional casework. We have been the winners of many prestigious awards in various areas of law since In 2016 we were awarded The Best Law Firm of the year by Intercontinental Finance Magazine and LegalComprehensive. Richard Gürlich was awarded Best Lawyer of the year by Lawyers World Lawyers World Premier and a Leading Lawyer by Intercontinental Finance Magazine. We provide legal services in both Czech and English. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

61 Chapter 11 England & Wales Louise Freeman Covington & Burling LLP Chloé Bakshi 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 EU Regime* EU Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Recast Regulation) applicable to legal proceedings instituted on or after 10 January 2015 EU Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) applicable to judgments given in legal proceedings instituted before 10 January 2015 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed in Lugano on 30 October 2007 (Lugano Convention) Hague Convention on Choice of Court Agreements (Hague Convention) Relevant Jurisdiction(s) All Member States of the EU (except Denmark) All Member States of the EU Iceland, Norway and Switzerland All Member States of the EU (except Denmark) and Mexico and Singapore Corresponding Section Below See chapter 2 See chapter 2 See chapter 2 See chapter 2 and question 5.1 Applicable Law/Statutory Regime Statutory Regimes Administration of Justice Act 1920 ( AJA ) Foreign Judgments (Reciprocal Enforcement) Act 1933 ( FJA ) General Regime English common law regime Relevant Jurisdiction(s) 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 principal countries include Republic of Cyprus, Malta, New Zealand and Malaysia Mainly countries in the Commonwealth such as Australia, Canada (except Québec), India, Guernsey, Jersey, Isle of Man, Israel, Pakistan, Suriname and Tonga Countries to which none of the above specific statutes/ regulations apply including USA, China (including Hong Kong), Russia and Brazil Corresponding Section Below Section 3 Section 3 Section 2 *Please see chapter 2 for further information on the EU recognition and enforcement regime. 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? 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

62 Covington & Burling LLP England & Wales The procedure for enforcement of such foreign judgments is set out in Part 74 of the English Civil Procedure Rules ( CPR ). 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? In order for a foreign judgment to be recognised and enforced at common law, it must be final, binding and conclusive. If a foreign judgment is the subject of appeal in that jurisdiction, the English courts are likely to grant a stay on enforcement proceedings pending the outcome of that appeal. 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 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, disregarding 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 common law. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 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 circumscribed jurisdiction without the medium of the English courts. 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 & 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. on grounds that the judgment debtor has no real prospect of success as evidenced by the foreign judgment. 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 2.5 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. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 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 judgment 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; g) the judgment imposes a fine or a penalty upon the judgment debtor; or h) there exists a previous final and conclusive judgment of a competent foreign or English court with sufficient jurisdiction that conflicts with the judgment that is being sought to be enforced. These challenges can be made by the defendant in the proceedings 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 judgment application under CPR Part 24 or employed as defences to recognition and enforcement. England & Wales 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 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, 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), 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 regulations 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. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

63 Covington & Burling LLP England & Wales England & Wales 2.7 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? Under common law, the defendant is entitled to challenge recognition 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. 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 What is the relevant limitation period to recognise and enforce a foreign judgment? Pursuant to section 24(1) of the Limitation Act 1980, the limitation 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. 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? 2.8 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? 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 manifestly wrong on the merits of the case or misapplied the relevant law. However, if the foreign court s judgment conflicts with an 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. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? 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 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 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 the United Kingdom. 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 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 jurisdiction 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 United Kingdom does not constitute a legal union, as the laws of England & 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 & Wales under the Civil Jurisdiction and Judgments Act As such, there are no types of judgment excluded from recognition and enforcement if 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? 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

64 Covington & Burling LLP England & Wales 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 judgment, 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 therefore become available to the judgment creditor upon registration. 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. 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 authenticated 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 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. 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. 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? 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 jurisdiction. The foreign court must have jurisdiction according to English law principles; b) the defendant was not served with proceedings in accordance 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 competent 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 4.1 Once a foreign judgment is recognised, what are the general methods of enforcement available to a judgment creditor? 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 judgment had been made in England. Under the AJA and FJA, enforcement 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 creditors include but are not limited to: a) Charging order Such an order would confer upon the judgment creditor an interest over the property (land, goods, securities, 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 ascertain the judgment debtor s assets in order to facilitate payment of judgment debts. d) Third party debt order This allows the judgment creditor 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 judgment 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 enforcement of foreign judgments pending enforcement proceedings in the UK. 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. England & Wales ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

65 Covington & Burling LLP England & Wales England & Wales 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 or awards? Please provide a brief description. There are two noteworthy legal developments which may impact on the recognition and enforcement of foreign judgments in the United Kingdom in the future. Brexit In June 2016, the UK voted to leave the EU. The UK s exit from the EU is unlikely to occur before At the time of this publication going to print, there is no clarity or certainty regarding the terms of the UK s exit from the EU. However, it seems certain that the UK s legal framework for enforcement of judgments will change as a result. When the UK leaves the EU, the enforcement of judgments from other EU countries will no longer be subject to the European regime outlined at question 1.1 above and chapter 2. It is not yet clear what regime will govern enforcement of such judgments following Brexit. It is possible that a replacement regime can be agreed with the EU or that the UK can join the Lugano Convention referred to at question 1.1 above. Otherwise, the UK may choose to implement the Brussels Recast Regulation unilaterally (but would not benefit from reciprocity if it did so). As a short-term measure, it seems likely that the UK will accede on its own behalf to the Hague Convention on Choice of Court Agreements, such that enforcement of judgments based on a choice of court would be facilitated in the UK. Absent any other regime, these judgments would fall to be enforced under the common law rules outlined at section 2 above. It remains too early to say what the rules on the recognition and enforcement of European judgments will be post-brexit, and practitioners should keep a close eye on developments in this area over the next few years. The Hague Convention on the Recognition and Enforcement of Foreign Judgments In March 2016, the Council on General Affairs and Policy of the Hague Conference on Private International Law set up a Special Commission to prepare a draft convention on the recognition and enforcement of foreign judgments (the Hague Judgments Convention ). The United Kingdom opted into the proposed Council Decision in May 2016 which authorised the opening of negotiations on the convention. Subject to certain exceptions, the proposed convention is to cover judgments in civil and commercial matters. The draft text provides that contracting states will be bound to recognise and enforce judgments from other contracting states (subject to certain defences such as public policy and fraud), as long as the original court had jurisdiction (on certain grounds set down in the convention). These grounds include jurisdiction being established on a territorial or a consensual basis as well as jurisdiction based on certain connections of the subject matter to the jurisdiction where the judgment was rendered. On the basis that judgments from outside the EU or European Free Trade Association countries (namely, Switzerland, Norway, Liechtenstein and Iceland) are currently only enforceable in England if the foreign court had jurisdiction on a territorial or consensual basis, the proposed convention could make these judgments more widely enforceable in England. 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 or award in your jurisdiction? Owing to the variety of regimes discussed above, it is particularly important for clients seeking to enforce a foreign judgment 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. 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, 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. Sovereign immunity 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 transaction for the purposes of s.3(1) of the State Immunity Act The UK Supreme Court decision in NML Capital Ltd v Republic of Argentina ([2011] UKSC 31) confirms 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 underlying 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 immunity in relation to enforcement proceedings is made particularly difficult as there is little ammunition available to the judgment 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

66 Covington & Burling LLP England & Wales Louise Freeman Covington & Burling LLP 265 Strand London WC2R 1BH United Kingdom Tel: URL: Louise Freeman specialises in complex commercial disputes. She advises investment banks, international corporate groups, asset managers and credit rating agencies, particularly in the financial services and private equity sectors. She advises on all forms of financial markets disputes, including mis-selling claims, asset management disputes, inter-creditor issues and ISDA-related disputes. She also advises clients on jurisdiction and enforcement issues, with emphasis on strategic considerations. She also represents parties in significant competition litigation proceedings, including the pioneering synthetic rubber cartel damages action, which was awarded as a standout competition matter by the FT s Innovative Lawyers 2015 and listed as one of the Lawyer s Top 20 cases of Louise has been recommended in The Legal and 2015, including for banking litigation (where she is noted to be an experienced adviser ), competition litigation (where she receives praise from clients) and commercial litigation (where she is said to be one of London s most effective partners ). Chloé Bakshi Covington & Burling LLP 265 Strand London WC2R 1BH United Kingdom Tel: cbakshi@cov.com URL: Chloé Bakshi is an Associate in the Dispute Resolution team at Covington & Burling LLP. Chloé represents clients in a broad range of international, commercial disputes, handling both international arbitration and litigation matters. She has experience advising clients in a variety of sectors, including banking, oil and gas and insurance. She has advised companies and high-net-worth individuals from a variety of jurisdictions including Russia and other CIS countries, the United States, Switzerland, the British Virgin Islands and Cyprus and many of her matters span multiple jurisdictions. Chloé has particular experience in handling commercial arbitrations under the rules of leading arbitral institutions such as the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA) as well as handling ad hoc arbitrations under the Arbitration Act She also has experience of making applications to the English High court in support of arbitral proceedings. Chloé has also handled numerous commercial fraud and asset tracing matters and has advised clients under investigation by the Serious Fraud Office (SFO) and Securities and Exchange Commission (SEC). England & Wales In an increasingly regulated world, Covington & Burling LLP helps clients navigate their most complex business problems, deals, and disputes. Founded in 1919, the firm has more than 850 lawyers in offices in Beijing, Brussels, London, Los Angeles, New York, San Francisco, Seoul, Shanghai, Silicon Valley, and Washington. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

67 Chapter 12 Finland Waselius & Wist Tanja Jussila 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 EU regimes Please see EU-specific chapter International regimes Convention on Civil Procedure Convention on the Recognition and Enforcement of Foreign Arbitral Awards The New York Convention on the Recovery Abroad of Maintenance Convention concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations towards Children Convention on the Recognition of Divorces and Legal Separations Convention concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations Convention on International Access to Justice Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children The Hague Convention on Choice of Court Agreements Relevant Jurisdiction(s) All signatory countries All signatory countries All signatory countries All signatory countries All signatory countries All signatory countries All signatory countries All signatory countries All Member States of the EU (except Denmark), Mexico, Singapore Corresponding Section Below Question 3.1 Section 3 Section 3 N/A Question 3.1 Question 3.1 Question 3.1 Question 3.1 Section 3 Applicable Law/Statutory Regime Convention on the International Recovery of Child Support and Other Forms of Family Maintenance Nordic regimes The Nordic Convention on Collection of Maintenance Obligations Nordic cooperation on execution of judgments in criminal matters given in other Nordic countries 1963 Convention on the Recognition and Enforcement of Judgements in Civil Matters General Regime Relevant Jurisdiction(s) All signatory countries Finland, Iceland, Norway, Sweden and Denmark Finland, Iceland, Norway, Sweden and Denmark Finland, Norway, Sweden and Denmark Corresponding Section Below N/A N/A Section 2 Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Recognition and enforcement of judgments in civil and commercial matters is governed by the Act on International Legal Assistance and Recognition and Enforcement of Judgments in Civil and Commercial Matters (426/2015, the Legal Assistance Act ). The said Act is applicable only to the extent no EU legislation or international convention that Finland is a party to provides otherwise. The Act contains only a few provisions on enforcement of foreign judgments, since the intention is that the details are regulated in the relevant EU legislation or convention. Judgments given in civil and commercial matters in other Nordic countries are subject to the Act on Recognition and Enforcement of Nordic Judgments in Civil Matters (588/1977, the Nordic Enforcement Act ), which implements the Convention on the Recognition and Enforcement of Judgements in Civil Matters. In criminal matters, the main piece of legislation governing enforcement is the Act on International Cooperation in the Enforcement of Certain Penal Sanctions (21/1987, the Sanction Enforcement Act ). As to the Nordic countries, the Nordic cooperation on execution of judgments in criminal matters is implemented in Finnish law by means of the Act on Nordic Cooperation in Criminal Matters (326/1963, the Nordic Cooperation Act ) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

68 Waselius & Wist Finland 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? As laid down in the Legal Assistance Act, a judgment given by a foreign court in a civil or commercial matter is recognised and enforced in Finland only if the enforcement can be based on an international agreement or a national provision of law. Hence, judgments given in other EU Member States, countries signatory to the Hague Convention on Choice of Court Agreements (the Hague Convention ) or the Nordic countries are recognised and enforceable, but judgments given in other countries are not, unless the enforcement can be based on a treaty or specific legislation. Although foreign judgments, at the outset, are thus not recognised and enforced in Finland, they may carry significant evidentiary weight if the matter, for instance, is re-heard in a Finnish court in order to obtain an enforceable judgment. Under the Nordic Enforcement Act, a judgment in a civil or commercial matter and certain other comparable decisions provided in the Act are recognised and enforced in Finland. As to criminal judgments, a judgment by a Nordic court where someone is sentenced to a fine, a conditional fine, ordered to give away something, to pay a certain amount of money or to compensate the costs in criminal proceedings may be enforced in Finland under the Nordic Cooperation Act. In both cases, a prerequisite for enforcement is that the judgment is enforceable in its country of origin. No other formal requirements are set for the judgment. In other criminal matters, foreign judgments are not recognised and enforced as such, but the sanction ordered in a foreign judgment may be enforced in Finland under the Sanction Enforcement Act. The prerequisites for enforcement of the sanctions are that the judgment is final and enforceable in its country of origin, that the action for which the sanction has been ordered is, or would under similar conditions be, also a crime in Finland and that the country where the sanction has been ordered has requested or consented to the enforcement of the sanction. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? As stated in question 2.2 above, foreign judgments are, at the outset, neither recognised nor enforced in Finland, with the exception of judgments given in other EU Member States, the other Nordic countries and countries signatory to the Hague Convention. If they are, recognition entails that the judgment is treated as a judgment by a Finnish court, while enforcement refers to the acts of enforcing the judgment. Judgments in criminal matters may be enforced by enforcing the sentences, but the judgments are not as such recognised in Finland so as to be treated as judgments given by Finnish courts. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. The Nordic Enforcement Act provides that a final and enforceable judgment given in another Nordic country is in force, i.e. recognised, in Finland unless otherwise provided in the Act and there is no procedure of recognition. A judgment in a civil or commercial matter may be declared enforceable upon request from a District Court in Finland. The application must be accompanied by a certified copy of the judgment to be enforced and a clarification of its enforceability. The matter is dealt with as a non-contentious civil case and the court s decision on the application may be appealed. A sanction ordered in a foreign judgment in a criminal matter may be enforced in Finland if the Finnish Ministry of Justice has requested enforcement in Finland from the country of origin or if the Ministry of Justice decides on enforcement upon request from a foreign country. A judgment in a criminal case given in another Nordic country may be enforced upon request by the competent authority of the country of origin. In Finland, either the Central Administration Unit of the Criminal Sanctions Agency or the Legal Register Centre decides on the application. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? As foreign judgments in civil and commercial matters are recognised and enforced only where so provided in an international agreement or a specific provision of law, there are no general provisions on challenge in the Legal Assistance Act, but challenge is governed by the provisions of each international agreement and/or national legislation. Under the Nordic Enforcement Act, a judgment is not recognised in Finland if, generally speaking, the jurisdiction of the country where the judgment was given was based only on the fact that the respondent owned assets located in the country or temporarily was in the country. The same applies if the judgment was given without the respondent having responded to the matter or having been served a request to respond, and where proceedings have been initiated in Finland or in another Nordic country on the same matter between the same parties prior to the other judgment, and the proceedings may lead to a judgment that is recognised in Finland. Finally, enforcement is prevented if the enforcing authority considers that the exclusive jurisdiction of the subject matter of the judgment lies with another country s court than the one having given the judgment, or if the recognition and enforcement of the judgment would be contrary to Finnish public policy. A judgment given in a criminal matter in another Nordic country is not enforceable if charges concerning the same matter are pending in or decided by a court in Finland, or if it concerns a crime for which the Prosecutor-General has ordered charges to be brought. Under the Nordic Cooperation Act, a national court does not have an obligation to enforce a judgment given in another Nordic country, but the authority deciding on the application for enforcement has the authority to approve or reject the application and the grounds for rejection have not been specified in the Act. The general rule, however, is that the request will be approved unless there is a special reason to deny it. As to judgments given in criminal cases in other countries, please see question 2.2 above. Since the judgments in criminal matters are not recognised as such, judgments cannot be challenged independently from their enforcement. If the situation described above is at hand, this would need to be brought to the attention of the authorities handling the application for enforcement before the application is granted. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? This is not applicable in Finland. Finland ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

69 Waselius & Wist Finland Finland 2.7 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? Please see question 2.5 above. In addition, where the Central Administration Unit of the Criminal Sanctions Agency or the Legal Register Centre has approved an application to enforce a judgment under the Nordic Enforcement Act, charges may not be brought in Finland for the crime that the foreign judgment concerns. 2.8 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? Please see question 2.5 above. There are no rules on conflicting local law, but under certain regimes judgments may not be enforced if they are contrary to Finnish public policy. There are also no rules on judgments on the same or a similar issue but between different parties. However, at the outset, the legal effect of a judgment only extends to the parties to the proceedings. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? There are no specific rules and, hence, such judgments are not treated differently than other judgments Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There are no differences in the rules and procedure What is the relevant limitation period to recognise and enforce a foreign judgment? The enforcement of sanctions in a foreign judgment in a criminal matter is subject to the limitation periods of the country of origin. The same applies to enforcement of a foreign judgment in a criminal matter given in another Nordic country once the relevant authority has approved a request for enforcement. Foreign judgments in civil and commercial proceedings are not recognised and enforced unless so provided in an international agreement or national legislation, in which case limitation periods are handled as provided in such agreement/legislation. Under the Hague Convention, for instance, a judgment may be enforced only if it is enforceable in the country of origin. Typically, limitation periods are considered matters of substantive national law and thus the limitation periods of the country of origin would generally apply. 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? As to EU regimes, please see the EU-specific chapter. Convention on Civil Procedure The Convention deals only with the enforcement of foreign orders for costs and expenses of the proceedings and is not addressed in detail here. The New York Convention The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention ) provides that an arbitral award rendered in another Contracting State may be recognised and enforced in a Contracting State, but does not place any requirements on the form and substance of the award to be recognised and enforced. According to the Convention, each Contracting State shall recognise arbitral awards rendered in another Contracting State as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, i.e. where recognition/enforcement is sought. See, however, question 3.4 below. The Finnish Arbitration Act (967/1992, the Arbitration Act ) provides that in order for a foreign arbitral award to be valid and recognised in Finland, it must not be contrary to Finnish public policy and the arbitration agreement underlying the award must be a valid arbitration agreement under Finnish law, i.e. must be made in writing or contained in an exchange of documents or e.g. s. Convention on the Recognition of Divorces and Legal Separations Under the Convention, divorces and legal separations are recognised in all other Contracting States subject to the terms of the Convention. The Convention is not addressed in detail here. Convention concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations The Convention applies to decisions rendered by a judicial or administrative authority in a Contracting State in respect of maintenance obligations arising from a family relationship, parentage, marriage or affinity, including a maintenance obligation towards an infant who is not legitimate, between: (a) a maintenance creditor and a maintenance debtor; or (b) a maintenance debtor and a public body which claims reimbursement of benefits given to a maintenance creditor. The Convention is not addressed in more detail here. Convention on International Access to Justice The Convention deals mainly with legal aid for nationals of and persons habitually resident in any Contracting State, but also contains a few provisions on the enforceability of an order for payment of costs and expenses of proceedings made in a Contracting State. Such a decision shall, on the application of the person entitled to the benefit or the order, be rendered enforceable without charge in any Contracting State. When assessing such an application, the authority in the requested state shall be limited to examining whether the documents required for the application have been produced. The Convention is not addressed in more detail here ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

70 Waselius & Wist Finland Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children The Convention deals with international co-operation for the protection of children, i.e. children from the moment of birth until they reach the age of 18 years. Such matters are, e.g., parental responsibility, custody, guardianship, placement in foster or institutional care and supervision of the care of a child. The Convention contains provisions on the recognition and enforcement of measures taken by the authorities of a Contracting State and on grounds on which recognition and enforcement may be refused. The Convention is not addressed in more detail here. The Hague Convention on Choice of Court Agreements The Hague Convention came into force and has been considered an important milestone for the enforceability of court judgments, and a mini version of the New York Convention, rendering court judgments enforceable similarly to arbitral awards. Its applicability is, however, restricted to matters involving an exclusive choice of court agreement. Under the Hague Convention, judgments given by a court of a Contracting State in an international civil or commercial matter designated by the parties under an exclusive choice of court agreement, shall be recognised and enforced in other Contracting States. For the purpose of the Convention, an exclusive choice of court agreement must be concluded in writing or by any other means of communication, which renders information accessible for further reference. Also, the agreement must designate the courts of one Contracting State, or one or more specific courts of one Contracting State, to the exclusion of other courts as the forum for deciding disputes. Such an agreement shall be considered exclusive unless expressly provided otherwise by the parties. A judgment under the Convention is a decision on the merits given by a court, irrespective of what it is called, and a determination of costs. An interim measure of protection is, however, not a judgment. In order for the judgment to be recognised and enforceable, it must have effect and be enforceable in the State of origin. 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? As to EU regimes, please see the EU-specific chapter. The New York Convention The New York Convention does not, as such, specify a difference between the recognition and enforcement of arbitral awards. It provides that each Contracting State shall recognise arbitral awards rendered in another Contracting State as binding and enforce them, and in order to obtain such recognition and enforcement, a party shall apply for it. The Finnish Arbitration Act lays down a procedure for the enforcement of foreign arbitral awards, but not explicitly for the recognition. Normally a party desiring to enforce an arbitral award files an application for the recognition and enforcement of the award simultaneously. There is no obstacle against filing an application, only for recognition by using the same procedure as laid down for enforcement in the Act, but this is rare in practice. The Hague Convention The Hague Convention does not specify a difference between recognition and enforcement but the two are, at the outset, treated similarly in terms of procedure. 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. As to EU regimes, please see the EU-specific chapter. The New York Convention The provisions of the Finnish Arbitration Act on enforcement of foreign arbitral awards mirror the New York Convention and provide more details regarding the procedure. According to the Act, an application for enforcement shall be filed with a competent District Court and shall be appended by the arbitral agreement and the original award or a certified copy thereof. Before the application is granted, the opposing party shall be heard unless there are special reasons not to. The matter is normally dealt with as a noncontentious matter without hearing witnesses. The Hague Convention According to Article 14 of the Hague Convention, the procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless the Convention provides otherwise. Furthermore, Article 8 provides that the court addressed shall not review the merits of the judgment given by the court of origin and that it shall be bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default. Article 13 of the Convention provides that the party seeking recognition or applying for enforcement shall produce: (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 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; (d) any documents necessary to establish that the judgment has effect or, where applicable, is enforceable in the State of origin; and (e) in case of a judicial settlement, a certificate of a court of the State of origin stating that the settlement or a part of it is enforceable in the same manner as a judgment in the State of origin. Article 13 also provides that an application for recognition or enforcement may be accompanied by a document, issued by a court of the State of origin, in the form recommended and published by the Hague Conference on Private International Law. Finally, the Finnish Legal Assistance Act, which complements the Hague Convention, provides that a foreign judgment shall be declared enforceable by a District court upon application and that the matter is dealt with as a non-contentious matter. The Act also contains provisions on service of the decision on enforceability on the other party, but in other respects the procedure for recognition and enforcement is intended to be laid down in the Hague 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? As to EU regimes, please see the EU-specific chapter. The New York Convention The New York Convention provides that recognition and enforcement of an award may be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) the subject matter of the difference is not capable of settlement by arbitration Finland ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

71 Waselius & Wist Finland Finland under the law of that country; or (b) the recognition or enforcement of the award would be contrary to the public policy of that country. Hence, if the situations (a) or (b) are at hand, the enforcing authority may on its own initiative refuse recognition and enforcement. In addition, recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, if that party furnishes proof that: (c) the parties to the arbitral agreement were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it; (d) 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; (e) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration; (f) 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 accordance with the law of the country where the arbitration took place; or (g) 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. This form of challenge thus requires that the opposing party invokes and demonstrates that a situation described in (c) (g) above is at hand. Normally, this is done when the opposing party is heard in connection with the application for enforcement. The Finnish Arbitration Act contains similar provisions under which a foreign arbitral award is not recognised in Finland against a party who furnishes proof of the existence of situations comparable to those set out in (c) (g) above. In addition, as mentioned in question 3.1 above, a foreign arbitral award is not recognised to the extent it is contrary to Finnish public policy. The Hague Convention As stated above, a foreign court judgment is recognised and enforced in Finland only where so provided in an international agreement or in a specific piece of law. Since the recognition and enforcement thus always is based on a separate instrument, which normally includes provisions on challenge or grounds for refusing enforcement, the Legal Assistance Act does not contain any provisions on this subject. Under Article 9 of the Hague Convention, recognition or enforcement may be refused if: (a) the exclusive choice of court agreement was 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 lacked the capacity to conclude the agreement under the law of the requested State; (c) the document which instituted the proceedings or an equivalent 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 notification 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 requested State in a manner that is incompatible with fundamental principles of the requested State 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 incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State; (f) the judgment is inconsistent with a judgment given in the requested State 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 requested State. Recognition or enforcement of a judgment may also be refused if, and to the extent that, the judgment was based on a ruling on a matter that is excluded from the application of the Convention, such as, inter alia, maintenance obligations and other family law matters, wills and succession and insolvency matters. In addition, as mentioned above, Article 8 provides that a judgment shall be recognised only if it has effect in the State of origin and recognition and enforcement may be postponed or refused if the judgment is subject to review in the State of origin or if the time limit for seeking ordinary review has not expired. Finally and notably, Article 11 provides that recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? As to EU regimes, please see the EU-specific chapter. Once an arbitral award or a judgment has been declared enforceable by a court decision under the New York Convention or the Hague Convention, enforcement may be applied for with the Finnish executive authorities. Enforcement is applied for by a written or electronic application delivered to the bailiff in whose district the respondent resides or is domiciled, or to another local enforcement authority, or by an electronic message transmitted through a technical link to the nationwide Enforcement Information System. In practice, the enforcement is normally carried out by a bailiff by means of attachment proceedings. 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 parallel with the entry into force of the Hague Convention in 2015, the Hague Conference has continued the work on the Judgments Project, which refers to the work undertaken by the Hague Conference since 1992 on two key aspects of private international law in cross-border litigation in civil and commercial matters: the international jurisdiction of courts and the recognition and enforcement of their judgments abroad. The Judgments Project led to the conclusion of the Hague Convention in 2005 and, in 2011, work on a broad convention covering not only cases involving exclusive choice of court agreements, was resumed. In 2016, the Working Group on the Judgments Project completed a Proposed Draft Text, and decided to set up a Special Commission to prepare a draft Convention. The first meeting of the Special Commission took place from 1 to 9 June 2016 and a second meeting is expected to take place in February The European Union has taken part in the work of the Working Group and Finland is following the development of the Judgments Convention ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

72 Waselius & Wist Finland 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? Finnish courts and executive authorities are generally quite efficient and courts often accept documentation in English in addition to Finnish and Swedish. When dealing with Finnish authorities, it is recommendable to contact the relevant judge or bailiff prior to or in connection with the enforcement in order to establish a dialogue and ensure that the necessary documents fulfil the requirements set for them. For instance, according to the executive authorities, the certificate confirming enforceability to be issued by the court of origin under the Recast Brussels I Regulation often does not fulfil the requirement set for it. In order to avoid the additional work and delay of re-issuance of the certificate by the court of origin, it is recommendable at an early stage to have the certificate checked. Additionally, in order to facilitate the communication with the authorities, it is often recommendable to use a local lawyer. Tanja Jussila Waselius & Wist Eteläesplanadi 24 A Helsinki Finland Tel: tanja.jussila@ww.fi URL: Tanja Jussila, partner, joined Waselius & Wist in 1999 after having completed her court practice. She graduated from the University of Helsinki in 1997 (LL.M.) and was admitted to the Finnish Bar in In 2006, Tanja was seconded to a leading international law firm in London. Tanja was appointed partner of Waselius & Wist in Tanja s main areas of practice include dispute resolution and contract, corporate and commercial law. She has represented a substantial number of Finnish and foreign clients in litigation and arbitration proceedings in Finland and abroad. She also regularly advises clients on related matters such as enforcement and interim measures, is a trained mediator and has frequently acted as an arbitrator. Tanja Jussila has been recommended as a leading lawyer in the field of Dispute Resolution and Litigation in several international ranking institutions. She is an author of various articles in international professional publications and has lectured on several topics relating to dispute resolution. Finland Waselius & Wist is a commercial law firm, committed to providing highly specialised legal services in complex business transactions. Waselius & Wist is especially renowned for high-end advice within the fields of capital markets, banking and finance, mergers and acquisitions, dispute resolution, tax law, IPR as well as EU and competition law. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

73 Chapter 13 France Jacques-Alexandre Genet Archipel Michaël Schlesinger 1 Country Finder 2 General Regime 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. 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? Applicable Law/ Statutory Regime French Code of civil procedure, French Code of civil enforcement proceedings and corresponding case law Multilateral conventions Bilateral conventions on mutual judicial assistance Relevant Jurisdiction(s) All jurisdictions for which no EU or bilateral conventions apply State parties to multilateral conventions including the Hague Convention of 30 June 2005 on Choice of Courts Agreements; the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956; the Convention concerning International Carriage by Rail of 9 May 1980; and the Convention on Third-Party Liability in the Field of Nuclear Liability of 29 July 1960 Algeria, Argentina, Benin, Bosnia-Herzegovina, Brazil, Burkina Faso, Cameroon, Central African Republic, Chad, China, Congo (Brazzaville), Egypt, Ivory Coast, Djibouti, Gabon, Laos, Macedonia, Madagascar, Mali, Mauritania, Mongolia, Montenegro, Morocco, Niger, Senegal, Serbia, Togo, Tunisia, United Arab Emirates, Uruguay, Vietnam Corresponding Section Below Section 2 Section 2 Section 3 Subject to special regimes set out by EU regulations and bilateral 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 on the numerous matters on which the codes remain silent. In a civil law jurisdiction like France, case law is not binding but is highly persuasive on lower courts. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? To be recognised and enforced in France, a foreign decision must qualify as a court judgment and be enforceable in its jurisdiction of origin, according to the law of that jurisdiction. It does not need to be final, so that foreign judgments that are made enforceable 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 treated as forming part of French public policy. As such, they are addressed in question 2.5 below. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? French law distinguishes between recognition and enforcement of judgments. Recognition is intended to introduce into the French legal order the situation established by a foreign judgment. Most foreign judgments are recognised in France without the need for a court judgment. However, a party may wish to seek recognition to secure a formal acknowledgment of its rights. For instance, a party can request recognition to prevent a claim already judged in a foreign 70 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

74 Archipel France court from being made in France; or, to 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 French territory. The foreign judgment acquires the same legal force and effects as a French judgment, providing full access to the available 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 (termed an exequatur ). 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. A challenge is made during the enforcement proceedings before the court of first instance (see question 2.4 above) or during any proceedings in which the foreign judgment is relied upon (recognition). If appropriate, the challenge can also be made through a pre-emptive action to declare the 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 ordering the liquidation of a company from having any effect in France. French courts may not review the merits of the judgment. They cannot review whether the foreign judge applied the correct law (according to its own private international law rules) to the merits of the dispute. France 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 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 of the Code for judicial organisation) following exchange of written submissions 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, it is normal practice to associate 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. Services are performed by bailiffs (huissiers de justice) when the recipient is domiciled in France. When the recipient is domiciled abroad, unless provided otherwise by special conventions on international service, a special procedure applies. The bailiff must hand over the act to be served to the public prosecutor 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 to the recipient. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? A foreign judgment may only be challenged on the grounds that: (i) It does not meet the conditions set out in question 2.2 above. (ii) The judgment is incompatible with the French international public policy regime. Under international public policy, French courts will exercise more restraint and will show greater deference to the foreign court than under domestic public policy. International public policy rules require: 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. (iii) The judgment was procured by fraud. (iv) The judgment conflicts with another judgment (as to which see question 2.7 below). 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 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 monetary 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 recognition/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. 2.7 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? 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 judgment 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 already pending in France, the recognition/enforcement of the foreign judgment may still be sought 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. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

75 Archipel France France 2.8 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? 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. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? 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 enforcement of a foreign judgment that purports to apply French law Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 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 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 What is the relevant limitation period to recognise and enforce a foreign judgment? 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 question 2.2 above), the limitation period to recognise or enforce a foreign judgment could depend on the law applicable to the foreign judgment in its country of origin. However, the matter cannot be considered settled in law. French law provides a 10-year limitation period applicable to all enforcement orders (i.e. including foreign judgments) rendered after 23 June Enforcement orders rendered before that date are time-barred after 30 years and in any event on 23 June 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? All bilateral conventions set out at question 1.1 above require that the foreign judgment be final and binding in the country of origin before being recognised and enforced in the other 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 concluded with Egypt, Tunisia, the United Arab Emirates and Uruguay provide specific rules to determine whether the foreign court had jurisdiction over the dispute. Other conventions simply refer to the private international law rules of the signatory state in which enforcement is sought. The bilateral conventions also require that the defendant must have been properly summoned. Other conditions of substance are set out at question 3.4 below. 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? All bilateral conventions provide for automatic recognition of foreign judgments, which has the same effects and limitations as described under the general regime at question 2.3 above. 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. 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 file written submissions as well. The procedure will normally take approximately six months. Parties do not necessarily need to be represented by a lawyer to the local bar association but 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 free translation (a sworn translation is required only in case of challenge on the quality of the translation); (ii) a copy of the service of the decision to the debtor; (iii) a certificate from the foreign court s 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). 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? 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 at 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. 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

76 Archipel France 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 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? In France, a judgment creditor may proceed with interim enforcement 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 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. 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 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 stored in bank safes, etc. The French Code of civil enforcement procedures provides specific attachment rules for each category. French law provides various options to judgment creditors to identify their debtor s assets. All bank accounts opened in France are registered in a single database, which is accessible by judgment creditors. The identity of land owners and a copy of the deed of 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 commitments to the debtor and to provide the supporting documentation. In any case, a judgment creditor may 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. 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, during which the parties file briefs and appear in court. The judgment confirming or lifting the attachments may be appealed. 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. The French Cour de cassation (the supreme court for civil and commercial matters) rendered a landmark decision on sovereign immunity from enforcement in In a previous ruling of 28 March 2013, the Cour de cassation had drastically restricted enforcement against sovereign entities by requiring that waivers of sovereign immunity not only be express, but also be specific as to the type of asset that can be attached (which in effect rendered meaningless most, if not all, contractual waivers of immunity granted by sovereigns). But the Cour de cassation reversed on 13 May 2015, holding that waivers of sovereign immunity are now (again) valid as long as they are express thereby eliminating the new requirement introduced in its 2013 ruling that it also be specific. This has made the enforcement of foreign judgments and awards against foreign states significantly easier than had been the case after the 2013 ruling. Since then, the 2015 ruling has been adopted by lower courts without restriction. However, the French Parliament has just passed a new bill to limit the attachment of diplomatic assets on the ground of waiver of immunity which must now not only need to be express but also special. This Bill has also subjected any enforcement steps against a Foreign State to a prior judicial authorisation. These provisions have been applicable since 11 December 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? 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 question 2.4 above). 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 each 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 experienced in foreign judgment enforcement is a key part of enforcing in France and enhances the likelihood of effective collection. France ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

77 Archipel France Jacques-Alexandre Genet Archipel 92, rue Jouffroy d Abbans Paris France Michaël Schlesinger Archipel 92, rue Jouffroy d Abbans Paris France France Tel: jagenet@archipel-law.com URL: 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. Tel: mschlesinger@archipel-law.com URL: Michaël Schlesinger is a French lawyer, specialising in international litigation and arbitration. He joined Archipel in 2012 and concentrates his practice on enforcement and recovery procedures. 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 practising civil and enforcement proceedings (AAPPE). Archipel is a boutique law firm serving the cross-border needs of corporate and private clients. The team comprises 10 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. The firm also provides advice to clients on all aspects of company life, foreign investment and negotiation of international contracts ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

78 Chapter 14 Germany Dr. Nils Schmidt-Ahrendts Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Dr. Johanna Büstgens 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 Multilateral conventions The Hague Convention on Civil Procedure of 1 March 1954 Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 New York Convention on the Recovery Abroad of Maintenance of 20 June 1956 The Hague Convention concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations towards Children of 15 April 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 The Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 2 October 1973 The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996 The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 23 November 2007 Relevant Jurisdiction(s) All countries signatory to the Convention All countries signatory to the Convention (more than 50 countries) All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention Corresponding Section Below Question 2.6 Question 2.6 Question 2.6 Question 2.6 Section 3 Question 3.2 Question 3.2 Question 3.2 Applicable Law/Statutory Regime Bilateral treaties Several bilateral treaties Treaty between Germany and Israel on the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters of 20 July 1977 Treaty between Germany and Tunisia on Legal Protection and Legal Assistance, the Recognition and Enforcement of Judgments in Civil and Commercial Matters and on Commercial Arbitration dated 19 July 1966 Treaty of Friendship, Commerce and Navigation between the United States of America and the Federal Republic of Germany of 29 October 1954 Domestic law Insolvency Statute Act on Proceedings in Family Matters and in Matters of Noncontentious Jurisdiction Code of Civil Procedure Relevant Jurisdiction(s) Austria, Belgium, Greece, Italy, the Netherlands, Norway, Spain, Switzerland, UK Corresponding Section Below Section 3 Israel Question 3.3 Tunisia Question 3.3 USA Question 3.1 All countries to which none of the above specific statutes/ regulations apply All countries to which none of the above specific statutes/ regulations apply All countries to which none of the above specific statutes/ regulations apply (therefore including, inter alia, USA, China, India, Russia and Brazil) Question 2.6 Question 2.6 Section 2 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

79 Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Germany Germany 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? The general legal framework under which a foreign judgment is recognised and enforced is contained in Sections 328, 722, 723 of the Code of Civil Procedure ( ZPO ). Section 328 ZPO sets out the necessary conditions for a foreign judgment to be recognised. Sections 722, 723 ZPO govern enforcement proceedings. As regards enforcement of foreign judgments, judgments granting performance can be declared enforceable, whereas declaratory judgments and judgments establishing or altering a legal relationship cannot. However, cost decisions as part of such judgments can be declared enforceable. It is disputed whether court settlements and public deeds can be declared enforceable. To be declared enforceable, the judgment must be valid. It must be final and not subject to appeal (Section 723 II 1 ZPO). Moreover, the judgment must be enforceable in the jurisdiction where it was rendered. Lastly, the conditions for the recognition of foreign judgments as set out in Section 328 I ZPO must be fulfilled (Section 723 II 2 ZPO). 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Foreign judgments within the meaning of Sections 328, 722, 723 ZPO include all state court decisions on the merits that are rendered in civil matters, including commercial, employment and labour law and competition law matters. Family matters, by contrast, are excluded and decisions concerning such matters are recognisable and enforceable under Section 107 et seq. of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction ( FamFG ). While cost decisions constitute decisions in the above sense, court settlements and enforceable deeds do not qualify as decisions and thus are not recognisable. A state court, within the meaning of Sections 328, 722, 723 ZPO, comprises any public body that is empowered under the law of the state that rendered the decision to resolve disputes. The recognition of foreign judgments is not restricted to monetary judgments. It does not matter whether the decisions are of declaratory nature, grant specific performance, or establish or alter a legal relationship. To be recognised, foreign judgments must be valid under the law of the country in which they were rendered. In accordance with the majority view, they must also be final and not subject to appeal. Therefore, interim measures are not recognisable under Section 328 ZPO. Section 328 ZPO sets out further conditions for the recognition of foreign judgments. It stipulates that foreign judgments are recognised, unless: The courts of the state to which the foreign court belongs do not have jurisdiction according to German law (Section 328 I No. 1 ZPO). This means that if a German court had exclusive jurisdiction pursuant to German law, a foreign judgment could not be recognised in Germany. The respondent who did not make an appearance in the proceedings and who takes recourse to this fact has not duly been served the document by which the proceedings were initiated, or not in such time as to allow him to defend himself (Section 328 I No. 2 ZPO). The judgment is irreconcilable with a judgment rendered in Germany, or with an earlier judgment of a foreign court that is to be recognised in Germany, or if the proceedings on which such judgment is based are irreconcilable with proceedings that have become pending earlier in Germany (Section 328 I No. 3 ZPO). The recognition of the judgment would lead to a result that would obviously be contrary to German public policy (Section 328 I No. 4 ZPO). Reciprocity has not been granted, i.e. an equivalent German judgment would not be recognised in the relevant foreign country (Section 328 I No. 5 ZPO). 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? German law distinguishes between recognition and enforcement. While recognition concerns the effects foreign judgments have in Germany, enforcement is a prerequisite to compulsory execution. According to the majority view, recognition entails that the effects the foreign judgment has in the rendering state extend to the recognising state (so-called Wirkungserstreckung ). However, this does not include effects that German law is not familiar with. If a foreign judgment is recognised, it has res judicata effect, i.e. German courts are bound by it and are barred from hearing a claim on the same subject matter between the same parties. Compulsory execution of a foreign judgment requires as a precondition that the foreign judgment is declared enforceable by the competent German court (Section 722 ZPO). By contrast, compulsory execution does not require that the judgment is recognisable under German law. Nevertheless, recognition and enforcement are closely linked, as foreign judgments can only be declared enforceable if the conditions for the recognition of foreign judgments set out in Section 328 I ZPO are met (Section 723 II 2 ZPO). 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. In Germany, recognition is granted ipso iure. Thus, a foreign judgment is recognised automatically, i.e. without any judicial or administrative procedure being required. However, the claimant or respondent of the foreign proceedings may bring a positive or negative declaratory action in accordance with Section 256 ZPO regarding recognition of the foreign judgment. Compulsory execution of a foreign judgment requires formal court proceedings, the so-called exequatur proceedings, which are directed at declaring the foreign judgment enforceable (Section 722 ZPO). The exequatur proceedings are adversarial proceedings and the general rules of jurisdiction apply. If the amount in dispute exceeds EUR 5,000, the regional court has subject matter jurisdiction. Otherwise, the district court is the competent court to hear the case (cf. Sections 21 No. 1, 71 I of the Courts Constitution Act). The regional or district court where the debtor has his habitual residence or, in the alternative, where the assets of the debtor are located, has local jurisdiction (Sections 722 II, 802 ZPO). In proceedings before regional courts, each party must be represented by a lawyer (Section 78 I 1 ZPO). Together with the application for enforcement for which no specific forms have to be filed, the person seeking to enforce a foreign judgment must provide a certified copy of the judgment (Sections 76 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

80 Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Germany 415, 435 ZPO). A translation is generally not required. However, the court may order the applicant to provide a translated copy of the judgment (Section 142 III ZPO). It is recommended to at least provide a certified translation of the operative part of the judgment. As foreign judgments are not presumed to be authentic (cf. Section 438 I ZPO), it may be necessary to have the judgment legalised by a German diplomatic or consular agent (see Section 438 II ZPO). In states that are signatories to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents of 5 October 1961, the competent foreign authority may issue an apostille instead. As regards the further proceeding, the general rules set out in the Code of Civil Procedure apply. Inter alia, there will be an oral hearing. The court will render its decision in the form of a judgment (Section 722 I ZPO). The court can declare not only the entire judgment but also only parts of the judgment enforceable. Possible legal remedies against the judgment are: appeal on issues of fact and law ( Berufung ) before the higher regional court in the district in which the court of first instance is located (Sections 511 et seq. ZPO); and appeal on points of law ( Revision ) before the Federal Court of Justice (Sections 542 et seq. ZPO). unless the courts of the state of the opening of proceedings do not have jurisdiction in accordance with German law, or recognition is contrary to public policy. Section 353 InsO governs the enforceability of foreign judgments rendered in foreign insolvency proceedings. Compulsory execution of such judgments requires exequatur proceedings in which the foreign judgment is declared enforceable by judgment. Pursuant to Section 353 I 2 InsO, Sections 722 II and 723 I ZPO shall apply mutatis mutandis. The Hague Convention on Civil Procedure of 1 March 1954 deals in Articles 18 and 19 with the enforceability of foreign cost orders against claimants in their home states. Pursuant to Article 19 I of the Convention, the order for costs and expenses shall be rendered enforceable without a hearing, but subject to subsequent appeal by the losing party. The application must be made through diplomatic channels but is free of charge (Article 18 I of the Convention). Article 31 III of the Convention on the Contract for the International Carriage of Goods by Road of 19 May 1956 ( CMR ) states that judgments rendered in accordance with the CMR are enforceable if the formal requirements in the enforcement state have been complied with. Germany 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The grounds for challenging recognition are listed in Section 328 ZPO (for further information see question 2.2). These grounds are exhaustive. The only substantive ground is the public policy exception contained in Section 328 I No. 4 ZPO. This provision requires that the recognition of the judgment leads to a result that would obviously be irreconcilable with fundamental principles of German law, and in particular with fundamental rights. Courts have construed the public policy exception restrictively. For example, US judgments awarding punitive damages or which were based on pre-trial discovery have been recognised. By contrast, judgments obtained by fraud have been declined recognition. Other examples, where German courts have declined recognition, include a serious violation of the right to be heard or the perversion of justice. The court cannot render a judgment declaring a foreign judgment enforceable if the prerequisites contained in Section 328 ZPO are not fulfilled (Section 723 II 2 ZPO). In addition, the respondent may raise defences based on events that occurred after the foreign judgment was rendered (cf. Section 767 II ZPO), such as fulfilment of the payment obligation. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Sections FamFG concern the recognition and enforcement of family matters. Section 107 FamFG deals with the recognition of foreign decisions in marital matters. Recognition of such decisions is not granted automatically but requires formal proceedings before the judicial administration of a federal state. All other decisions that concern family matters within the meaning of Section 1 FamFG are recognised automatically pursuant to Section 108 I FamFG. Sections 108 IV, 109 I FamFG are identical to the grounds contained in Section 328 I ZPO. Section 110 FamFG deals with the enforceability of foreign decisions in family matters. Section 110 I and III FamFG is identical to Sections 722 I and II, 723 II ZPO. Pursuant to Section 343 I of the Insolvency Statute ( InsO ), the opening of foreign insolvency proceedings shall be recognised, 2.7 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? A foreign judgment is not recognised and declared enforceable if it is irreconcilable with a German judgment or an earlier judgment of a foreign court (see Sections 328 I No. 3, 723 II 2 ZPO). A foreign judgment is not recognised and declared enforceable if German court proceedings have become pending before the proceedings on which the judgment is based (see Sections 328 I No. 3, 723 II 2 ZPO). By contrast, proceedings pending before foreign courts are irrelevant. 2.8 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? In Germany, there is no révision au fond (see Section 723 I ZPO). This means that German courts generally do not review whether the judgment complies with German or foreign substantive law. The wrong application of German law is thus irrelevant for enforcing the judgment. However, the foreign judgment is not recognised and declared enforceable if it is contrary to public policy (Section 328 I No. 4 ZPO; see question 2.5 above). A prior judgment on the same or a similar issue between different parties does not hinder the recognition and enforcement of a foreign judgment. As stated above, there are only limited grounds on which recognition and enforcement can be refused (see Section 328 I ZPO). A conflicting judgment between different parties is not one of them. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? As stated above (see question 2.8), there is no révision au fond. This means that the German court cannot review whether the foreign court has applied German substantive law correctly. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

81 Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Germany Germany 2.10 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There are no differences in the rules and procedure in the sixteen federal states as the Code of Civil Procedure is federal law and therefore applies nationwide What is the relevant limitation period to recognise and enforce a foreign judgment? There is no limitation period regarding bringing an action to declare a judgment enforceable. However, claims that have been declared final and absolute are time-barred after 30 years (Section 197 I No. 3 of the Civil Code). This also includes claims which were awarded by arbitral tribunals. 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? Among the multilateral conventions and bilateral treaties listed in Section 1 above, the most important instrument is the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 ( New York Convention ). The convention applies to the recognition and enforcement of foreign arbitral awards (see Section 1061 I 1 ZPO). Arbitral awards include partial awards, awards on costs and awards on agreed terms. By contrast, procedural orders and interim measures are not considered awards within the meaning of Section 1061 ZPO. According to Section 1025 ZPO, an arbitral award qualifies as foreign if the seat of arbitration is located outside Germany. The award must also be final in its country of origin. Article VI (2) of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Federal Republic of Germany of 29 October 1954 concerns the enforcement of foreign arbitral awards. Due to its limited relevance, it will not be discussed in further detail below. With respect to all other instruments mentioned in Section 1, Section 3 will be limited to pointing to important differences in comparison to the general recognition and enforcement regime under Sections 328, 722, 723 ZPO discussed in Section 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? Like the default rules contained in Sections 328, 722, 723 ZPO, the New York Convention distinguishes between recognition and enforcement. Both terms have the same meaning under the New York Convention as they have in the German Code of Civil Procedure. Recognition solely concerns the legal effects of foreign arbitral awards, whereas enforcement relates to the compulsory execution of foreign arbitral awards after they have been declared enforceable. 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. Recognition and enforcement of foreign arbitral awards are governed by Sections 1061 et seq. ZPO and the New York Convention. Foreign arbitral awards are recognised automatically. Enforcement, i.e. compulsory execution, of a foreign arbitral award requires that the award has been declared enforceable by court order. The applicant wishing to enforce an arbitral award must bring an action before the Higher Regional Court where the party opposing the application has his place of business or habitual residence or where his assets are located (Section 1062 III ZPO). The application must be made in writing or put on record at the court registry (Section 1063 IV ZPO). The applicant must submit a signed copy, a certified copy, and for each respondent a simple copy of his application. The documents to be accompanied with the application include the original award or a certified copy of the award (Section 1064 I 1 ZPO). The certification may be issued by the lawyer representing the applicant in the enforcement proceedings (Section 1064 I 2 ZPO). A translation of the award is not mandatory. Nevertheless, it is recommended to provide a certified translation of, at least, the operative part of the award. In any case, the court may order the applicant to provide a certified translation of the entire award (Section 142 III ZPO). The applicant does not have to enclose a copy of the arbitration clause. However, the court may order the applicant to produce the arbitration clause if it deems it necessary (Section 142 I ZPO). The proceedings are not ex parte proceedings. The opposing party must be given an opportunity to be heard (Section 1063 I 2 ZPO). With the service of the action, the court will set a time limit to respond. In general, it is within the discretion of the court to order an oral hearing. However, an oral hearing is mandatory if the party opposing the application raises one of the grounds for setting aside the award contained in Section 1059 II ZPO (Section 1063 II ZPO) or if one of the parties requests an oral hearing. The parties must generally not be represented by counsel. If the court, however, orders an oral hearing, the representation by counsel is mandatory. In any case, representation by counsel is recommended. The court will render its decision in the form of an order (Section 1063 I 1 ZPO). This court order is to be declared provisionally enforceable (Section 1064 II ZPO). In case of a negative decision, the court issues an order declaring that the award is not recognised in Germany (Section 1061 II ZPO). The decision can be appealed on a point of law ( Rechtsbeschwerde ) before the Federal Court of Justice (Sections 1065 I, 1062 I No. 4 ZPO). The Law on the Implementation of International Treaties and Conventions of the European Union in the Area of Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 November 2015 ( AVAG ), which applies to recognition and enforcement proceedings under the Treaty between Germany and Israel, provides for simplified and expedited enforcement proceedings. The proceedings are ex parte proceedings and an oral hearing generally does not take place. The competent court decides by court order that the court certificate of enforceability ( Vollstreckungsklausel ) is to be issued. Similar expedited proceedings are foreseen in the German law implementing, inter alia, the Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations of 2 October 1973 and the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 23 November ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

82 Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Germany Under the treaty between Germany and Tunisia, the court issues its decisions by way of court order. Sections 1063 I, 1064 II ZPO apply by reference in the implementation law. Article 24 of the Treaty between Germany and Israel contains a time limit for recognition and enforcement. It states that the recognition and enforcement of a foreign judgment can be refused if 25 years have passed since the judgment was no longer subject to appeal. 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? Recognition and enforcement of foreign arbitral awards can be refused on the grounds set out in Article V of the New York Convention. These include: lack of a valid arbitration agreement; violations of the right to be heard; excess of authority; 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. Beyond these grounds, no further review of the award is possible. In particular, there is no révision au fond. The lack of objective arbitrability and the violation of public policy are grounds that must be considered by the court ex officio. The other grounds must be pleaded by the party who relies on them. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Irrespective of the methods of enforcement, compulsory enforcement generally requires in addition to the judgment declaring the foreign judgment or foreign arbitral award enforceable that a court has rendered a certificate of enforceability and that the judgment declaring the foreign judgment or foreign arbitral award enforceable has been duly served on the debtor. Moreover, there are specific requirements that have to be observed with regard to the respective enforcement measures. For the enforcement of monetary judgments, the debtor may choose from three different enforcement measures: (1) attachment of movable property; (2) attachment of claims of the debtor against third parties and other rights of the debtor; and (3) seizure of immovable 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. The Hanseatic Higher Regional Court ruled as an appellate court that an application for a declaration of enforceability of a judgment by the Arbitration Court of the City of Moscow had to be rejected due to a lack of reciprocity (judgment of 13 July U 152/11). According to Section 328 I No. 5 ZPO, the recognition of a judgment by a foreign court shall be refused if reciprocity is not granted. Reciprocity is granted if the recognition and enforcement of an equivalent German judgment would not experience significantly greater difficulties in the state of the foreign judgment than the foreign judgment would face in Germany. In this regard, the courts apply a generous standard in consideration of the needs of international business. The Hanseatic Higher Regional Court nevertheless decided that the requirement of reciprocity had not been fulfilled in relation to Russia. The court justified its decision on the ground that a Russian court had denied reciprocity in the past. A German company initiated investment arbitration proceedings in Switzerland against the Kingdom of Thailand, based on a treaty for the promotion and mutual protection of capital investments between Germany and Thailand. The German company then sold its concession company to a third party and agreed that this party could, under certain circumstances, demand the termination of the investment proceedings. When the third party expressed such demand, the German company continued to pursue its claims and obtained an award against the Kingdom of Thailand. It then successfully sought enforcement of the award before the Higher Regional Court of Berlin. The declaration of enforceability was challenged by the Kingdom of Thailand before the Federal Supreme Court. The court found that an award which has been obtained in violation of a contractual obligation towards a third party is not contrary to the ordre public (decision of 6 October 2016 I ZB 13/15). Moreover, the court did not assume that the award had been obtained fraudulently, nor did it find that the applicant s behaviour amounted to unlawful and immoral infliction of damages under German tort law (Section 826 of the Civil Code). The Higher Regional Court Celle had to decide on the declaration of enforceability of an arbitral award (decision of 14 October Sch 1/15 (Kart)). The applicant bred sugar beets. The respondent also operated in the market for sugar beets. The parties concluded a cooperation agreement, according to which the respondent was given access to the applicant s germplasm and technology against payment of royalties. Germplasm is a requirement for successful breeding. Under the agreement, the applicant remained the owner of the germplasm. After the applicant had rightfully terminated the agreement, the parties raised mutual claims against each other. The arbitral tribunal ruled that the respondent was obliged to pay the applicant outstanding royalties. Furthermore, it decided in the form of a preliminary award that the respondent was also obliged to hand over the germplasm as well as the technology to the applicant, unless it could prove to have become the owner of the germplasm. The respondent argued that the cooperation agreement was void due to cartel law infringements and that the arbitral award therefore violates the ordre public. The court ruled, first, that an application for declaration of enforceability is inadmissible if it relates to a preliminary award which does not conclude the arbitration. Secondly, with regard to the alleged violation of the ordre public, the court held that mandatory provisions of European and German cartel law form part of the ordre public. Therefore, the court was under an unrestricted obligation to scrutinise the award as the prohibition of a révision au fond does not apply in this case. At the same time, the court, however, pointed out that an annulment of the award is normally not appropriate if the legal view taken by the arbitral tribunal and the one of the state court reviewing the award are equally justifiable. In the instant case, the legal assessment of the arbitral tribunal was at least arguable according to the court. Germany ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

83 Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Germany Germany 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? In German court proceedings, the costs of the proceedings, including the costs of the court and the attorney fees, are allocated in accordance with Section 91 et seq. ZPO. Section 91 I 1 ZPO contains the principle allocation rule that costs follow the event. This means that the losing party must bear the costs of the court, the reimbursable attorney fees of the other side as well as its own attorney fees. Costs arising in exequatur proceedings under Sections 722, 723 ZPO and under the New York Convention consist of court costs and attorney fees. In exequatur proceedings under Sections 722, 723 ZPO, the costs of the court amount to EUR 240 (KV No of the Law on Court Costs ( GKG )). The court costs arising in enforceability proceedings under the New York Convention are calculated on the basis of the amount in dispute, which in turn depends on the claims submitted for enforcement. They are to be determined in accordance with KV No GKG. If, for example, the amount in dispute is EUR 10 million, the court costs are approximately EUR 75,000. Attorneys may conclude fee agreements with their clients that deviate from the attorney fees that are reimbursable in court proceedings. However, they cannot agree on fees that are lower than the reimbursable fees (Section 49b I of the Federal Lawyers Act ( BRAO )). Agreements on success fees are not permitted (Section 49b II BRAO), unless the client would otherwise be deterred from taking legal proceedings due to his economic situation (Section 4a of the Law on Remuneration of Attorneys ( RVG )). The reimbursable fees are calculated on the basis of the amount in dispute and determined in accordance with the Law on Remuneration of Attorneys. The relevant fee numbers are No. 3100, 3104 VV RVG. If, for example, the amount in dispute is EUR 10 million, the attorney fees for each side are approximately EUR 95,000 (in case a hearing takes place). It is hard to predict the duration of enforcement proceedings under Sections 722, 723 ZPO and under the New York Convention. Various factors will have an impact on the length of the proceedings. The length, inter alia, depends on whether the respondent raises grounds to refuse enforcement and whether an oral hearing takes place. Enforceability proceedings regarding foreign judgments under Sections 722, 723 ZPO and foreign arbitral awards under the New York Convention most likely last between six and eighteen months. In the meantime, the party seeking to enforce a foreign arbitral award may seek interim relief pursuant to Section 1063 III ZPO ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

84 Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Germany Dr. Nils Schmidt-Ahrendts Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Brooktorkai Hamburg Germany Dr. Johanna Büstgens Hanefeld Rechtsanwälte Rechtsanwaltsgesellschaft mbh Brooktorkai Hamburg Germany Tel: schmidt-ahrendts@hanefeld-legal.com URL: Dr. Nils Schmidt-Ahrendts primarily acts as arbitrator and counsel in domestic and international arbitration proceedings. He has been involved in proceedings under the rules of the ICC, the DIS, the SCC and the LCIA as well as in ad hoc proceedings. Nils also represents international and domestic clients in proceedings before German courts and assists them with the enforcement of foreign awards and judgments. His focus lies in the areas international trade, sales law, construction law, corporate law, energy, infrastructure and post-m&a. Nils holds a Doctor of Laws in international sales law (CISG). Before joining Hanefeld Rechtsanwälte, he worked for several years with CMS Munich in the team of Dr. Klaus Sachs. Nils is a visiting professor on arbitration and CISG at the Universities of Berlin, Freiburg and the European Business School. He regularly speaks at international conferences and is the author of a number of publications. Tel: buestgens@hanefeld-legal.com URL: Dr. Johanna Büstgens joined Hanefeld Rechtsanwälte in She acts as counsel in arbitration and state court proceedings as well as secretary to arbitral tribunals. The focus of her practice is international arbitration, international commercial and sales law and international investment law. Johanna received a Doctor of Laws from Bucerius Law School in the area of international arbitration. Before joining Hanefeld Rechtsanwälte, she completed her legal traineeship at the Hanseatic Higher Regional Court with stages at the European Commission, the German Parliament and the International Court of Arbitration in Paris. Germany Hanefeld Rechtsanwälte is Germany s premier dispute resolution boutique and is based in Hamburg. It has received accolades across jurisdictions. Its clients benefit amongst others from its independent structure and its familiarity with all relevant perspectives of dispute resolution, the perspective of counsel, arbitrators and arbitral institutions. Dr. Inka Hanefeld, LL.M. (NYU) is one of the most in-demand female arbitrators worldwide and a Vice President of the ICC International Court of Arbitration. Jan Heiner Nedden has managed more than 1,000 arbitration matters during his time with the ICC and has now a record of more than 40 cases as arbitrator after joining the firm in Dr. Nils Schmidt-Ahrendts has been recognised by his peers as the shooting star of the German arbitration scene and has acted as arbitrator and counsel in numerous ICC, LCIA, SCC and DIS arbitrations as well as counsel before German state courts. Dr. Friedrich Rosenfeld is the firm s investment arbitration expert and also regularly acts as arbitrator and counsel in commercial matters. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

85 Chapter 15 India Jafa&Javali, Advocates Kirit S. Javali 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 India is party to bilateral treaties with the reciprocating countries notified under the Code of Civil Procedure 1908 (the Code) for the purpose of recognition and enforcement of foreign judgments, namely the United Kingdom, Aden, Fiji, Republic of Singapore, the United Arab Emirates, Federation of Malaya, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue) and the Trust Territories of Western Samoa, Hong Kong, Papua New Guinea and Bangladesh. The Civil Procedure Code provides that an Indian court may enforce a foreign judgment so long as it conforms to certain conditions. 2 General Regime Relevant Jurisdiction(s) Malaysia: High Court and Court of Appeal. Colony of Aden: Supreme Court of Aden. New Zealand and the Cook Islands, Trust Territory of Western Samoa: Supreme Court of New Zealand. Burma: all civil and revenue courts. United Kingdom of Great Britain and Northern Ireland: House of Lords, Court of Appeal, High Court of England, Court of Sessions in Scotland, the High Court of Ireland, the Court of Chancery. Colony of Fiji: Supreme Court of Fiji. Hong Kong and Republic of Singapore. Trinidad and Tobago. Papua New Guinea: Supreme Court. Bangladesh: Supreme Court and Courts of District and subordinate judges. Canada: Supreme Court of Ontario. Corresponding Section Below Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? The Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) governs the execution of decrees, whether foreign or domestic, in India. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? A foreign judgment means a judgment of a foreign court, where foreign court means a court situated outside India and not established or continued by the authority of the Indian Government. Foreign judgments which are issued by superior courts of a country notified as a reciprocating territory (which includes the United Kingdom and Singapore), and for a sum of money, not being money payable in respect of taxes or other charges of a like nature, may be enforced in India between the parties as a judgment of an Indian court. A foreign judgment or decree should be conclusive as to any matter adjudicated by it. The test for conclusiveness of a foreign judgment or decree is laid down in Section 13 of the CPC, which states that a foreign judgment shall be conclusive unless: a) it has not been pronounced by a court of competent jurisdiction; b) it has not been given on the merits of the case; c) it appears, on the face of the proceedings, to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; d) the proceedings in which the judgment was obtained are opposed to natural justice; e) it has been obtained by fraud; and/or f) it sustains a claim founded on a breach of any law in force in India. Thus, before enforcing a foreign judgment or decree, the party enforcing it must ensure that the foreign judgment or decree passes the tests above. If the foreign judgment or decree fails any of these tests, it will not be regarded as conclusive and hence not enforceable in India. The Code presumes in favour of the competency of jurisdiction of the foreign court unless proved to the contrary. The landmark judgment of Ramanathan Chettyar and Another v Kalimuthu Pillay and Another elucidates the following circumstances in which the foreign court is said to have competent jurisdiction: a) where the defendant is a subject of the country in which the judgment was passed; b) where the defendant is a resident of the country in which the action was commenced; c) where the defendant has in a previous case filed a suit in the same forum; d) where the defendant has voluntarily appeared; and 82 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

86 Jafa&Javali, Advocates India e) where the defendant has contracted to submit himself to the jurisdiction of the foreign court. Recognition of a foreign judgment also depends upon the conditions of reciprocity which are the foundation of international treaties governing the recognition and enforcement of foreign judgments in India. Execution/enforcement may be refused if the judgment debtor proves any of the conditions mentioned above. Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court. There is no provision under Indian law for enforcement of interim orders of a foreign court. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Yes. Recognition involves acceptance of a judicial decision by courts of a foreign jurisdiction. Enforcement envisages filing an execution petition where a foreign judgment is from a reciprocating territory under Section 44A of the Code (subject to fulfilment of conditions), or a suit where a foreign judgment is obtained from a non-reciprocating territory. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Foreign judgments under Indian law are classified into two broad categories based on the territory pronouncing the decree: Reciprocating territories. Non-reciprocating territories. A foreign judgment from a recognised court in a reciprocating territory can be executed straight away as per section 44A and Order XXI, Rule 22 of the Code of Civil Procedure 1908 (CPC). substantially and finally decided in a prior suit between the same parties. Hence, a decree passed by a superior court of a foreign country cannot be enforced in India if it contravenes an earlier conclusive judgment passed by a competent court in a suit between the same parties, as it is enforced as a domestic decree. 2.8 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? Generally, the basis for challenging enforcement under common law will not include a determination 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 manifestly wrong on the merits of the case. However, if the foreign court s judgment conflicts with an existing Indian law or if the foreign judgment is irreconcilable with an Indian judgment on the same issue, then the court may refuse to recognise the foreign judgment on grounds that its recognition and enforcement would be contrary to public policy. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? The provisions and rules as prescribed by the Civil Procedure Code, 1908 on the recognition and enforcement of foreign judgments shall apply. The fact that the foreign judgment purports to apply Indian law does not transform it into a judgment of the local courts Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. India 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The most common ground for challenging the enforceability of a foreign judgment in India is jurisdiction. For a foreign judgment to be conclusive and enforceable, it must be rendered by a court of competent jurisdiction whose competence has been ascertained. In addition, Section 13 of the Code makes a foreign judgment obtained by fraud unenforceable in India. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? A foreign judgment or decree should be conclusive as to any matter adjudicated by it. Foreign enforcement orders/(pre-judgment) attachment orders/awards are enforceable if they satisfy the test and conditions as stipulated in Section 13 of the CPC. 2.7 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? The principle of res judicata embodied in the Code prohibits a court of competent jurisdiction from trying a suit on a matter that has been No. The Act extends to the whole of India except to the State of Jammu and Kashmir and the State of Nagaland and the tribal areas provided that State Government concerned may, by notification in the official gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification What is the relevant limitation period to recognise and enforce a foreign judgment? As per the provisions of the Code, foreign judgments from reciprocating territories are executable in India as decrees passed by Indian district courts. The Limitation Act 1963 prescribes the time limit for execution of a decree and for filing of a suit in the case of a foreign judgment. As per the provisions of the statute of limitation, the following time period is prescribed for the execution of decrees: three years in the case of a decree granting a mandatory injunction commencing from the date of the decree or where a date is fixed for performance; and 12 years for execution of any other decree commencing from the date when the decree becomes enforceable or where the decree directs any payment of money or the delivery of any property to be made at a certain date or in a recurring period, when default in making the payment or delivery in respect of which execution is sought takes place (provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation). ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

87 Jafa&Javali, Advocates India India 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? Please refer to the answer to question 2.2. However, in the case of a foreign judgment from a foreign court in a non-reciprocating territory, the judgment holder has the option to file either a fresh civil action (suit) on that foreign decree or on the original cause of action, or both, in an Indian court of competent jurisdiction. Under the Code of Civil Procedure 1908 (CPC), Indian courts presume the production of any document to be a certified copy of a foreign judgment and that such a judgment was pronounced by a court with competent jurisdiction. The burden to prove the contrary, if any, lies upon the defendant. 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? Please refer to the answer to question Enforcement 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? In India, judgments obtained from superior courts of reciprocating territories are directly enforceable under the Codes subject to fulfilling the criteria. However, judgments of courts from nonreciprocating territories are enforceable only after filing a new civil suit in India, wherein the foreign judgment simply has evidentiary value. 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. A foreign judgment must be passed by a court with competent jurisdiction; otherwise the judgment is null and void. In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar [AIR 1973 Mad. 141], it was alleged by the respondent that since he was not a subject of the foreign country, and that he had not submitted to the jurisdiction of the foreign court (the Singapore court), the decree could not be executed in India. The appellant, in his defence, stated that the respondent was a partner of a firm which was doing business in Singapore and had instituted various suits in the Singapore courts. Therefore, the appellant argued, the respondent had accepted the Singapore court s jurisdiction. The court held that it was the firm which had accepted the jurisdiction of the foreign court and the respondent, in an individual capacity, had not accepted the jurisdiction. This was one of the reasons for which the Indian High Court held that the decree against the respondent was not executable. The notice of proceedings and final orders to the defendant are important parts of civil procedure in India. In the event that the defendant fails to appear in the foreign court, the foreign court must decide the matter on the evidence produced by the plaintiff and the judgment must not be in violation of the principles of natural justice. The court must examine that the defendant was served with notice of the proceedings and was given an adequate opportunity to present the case. Where the foreign judgment is incompatible with public policy, it cannot be enforceable or executable in India. Foreign judgments from a recognised court in a reciprocating territory are enforceable. 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? The Code of Civil Procedure 1908 (CPC) prescribes more than one mode of execution of the decree. Therefore it is the judgment holder who has the option to choose a particular mode of executing and enforcing a judgment in his favour. Subject to the conditions and limitations prescribed, the court can order the execution of the decree as sought by the judgment holder in its application for execution through the following methods: By the delivery of any property specifically decreed. By the attachment, or by the attachment and sale, or by the sale without attachment, of any property. By the arrest and detention in prison of any person. By the appointment of a receiver. Otherwise, as the nature of the relief granted may require. A recognised foreign judgment can be enforced in India in two ways. The Code by virtue of section 44A of the CPC permits enforcement of a judgment from a superior court of a reciprocating territory in the same manner as a decree passed by a domestic district court. A reciprocating territory is defined in Explanation I to section 44A as: reciprocating territory means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section, and superior courts, with reference to any such territory, means such courts as may be specified in the said notification. A judgment from a court of a reciprocating territory can be directly enforced in India by filing an execution application. Section 44A (1) of the CPC states that where a certified copy of a decree of any superior court of a reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court (meaning that the entire scheme of execution of decrees as laid down in Order 21 of the CPC will be applicable). While filing the execution application the original certified copy of the decree along with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted has to be annexed to the application. Section 51 of the Code will then apply whereby the court may order measures such as attachment and sale of property or attachment without sale, or delivery of property specifically decreed, and in some cases arrest (if needed) in enforcement of a decree. However, the Code does not permit direct enforcement of judgments from non-reciprocating territories without the filing of a new civil suit in which the said judgment only has evidentiary value ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

88 Jafa&Javali, Advocates India 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. The Supreme Court of India in M/S Alcon Electronics Pvt. Ltd. v. Celem S.A. OF Fos Roujan, France & Anr. recently held the execution of an interlocutory order of an English Court pertaining to dismissal of challenge to its jurisdiction, including order for costs and interest thereon, to be maintainable in Indian Courts. It was further held that it is to the reciprocal advantage of the courts of all nations to enforce foreign rights as far as practicable. To this end, broad recognition of substantive rights should not be defeated by some vague assumed limitations of the Court. When substantive rights are so bound up in a foreign remedy, the refusal to adopt the remedy would substantially deprive parties of their rights. The necessity of maintaining the foreign rights outweighs the practical difficulties involved in applying the foreign remedy. 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? Kirit S. Javali Jafa&Javali, Advocates S-316, Panchsheel Park New Delhi India Tel: kirit@jafajavali.com URL: Mr. Kirit S. Javali, after his completing LL.B. (Hons) at the University of Leeds, U.K., was called to the Bar from Gray s Inn in Thereafter, he underwent a stint of six months pupillage with Gray s Inn Chambers under Dr. Phillip Baker, QC and also trained with the City law firm of TLT Solicitors in London, U.K. Upon his return to India, he worked with the Mumbai law firm of Crawford Bayley & Co. Amongst other firms, he is also a member of the Honb le Society of Gray s Inn, General Council of the Bar of England & Wales, Bar Council of Delhi, India International Law Foundation Supreme Court Bar Association and the Delhi High Court Bar Association. Being the litigation unit head, Mr. Kirit S. Javali has also acted for Indian and multinational companies in various arbitration proceedings in India, including ICC international arbitration proceedings conducted in London, U.K. He regularly appears and argues matters in the Supreme Court of India, including various High Courts in the country. His other practice areas include banking, company, and commercial laws, intellectual property rights, information technology and life sciences. India Recognition and enforcement is accorded only to the judgments from the reciprocating territories with which India has signed reciprocal agreements only. Jafa&Javali is a full-service New Delhi-based law firm, established in 2003, having associated law offices in Bangalore, Mumbai and Chennai, India s leading commercial centres. In recognition of the increasingly multinational character of today s commercial transactions and negotiations, Jafa&Javali s lawyers have actively, over the years, worked and interacted with leading international law firms and transnational overseas entities, which augment the firm s capabilities in handling work and issues involving cross-border business operations. The firm places a special emphasis upon understanding its client s commercial interests by providing practical solutions within the framework of applicable laws, policies and regulations in force. Some of the partners of Jafa&Javali hold formal overseas legal qualifications and regularly contribute articles to leading newspapers and journals, and lecture on a variety of current legal issues. In acknowledgment of Jafa&Javali s very strong client service commitment, Jafa&Javali is rated by the Asia Pacific Legal 500 ( as a recognised and competent law firm for Corporate/M&A, Banking, Finance and Capital Markets, Intellectual Property, Projects and Energy and Real Estate. Jafa&Javali has also been chosen as the winner of the Corporate Intl Magazine practice award for Best Law Firm in India for Dispute Resolution work ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

89 Chapter 16 Indonesia Alexandra Gerungan Makarim & Taira S. Hendrik Alfian Pasaribu 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 Law Number 30 of 1999 regarding Arbitration and Alternative Dispute Resolution ( Arbitration Law ) The Convention on the Recognition and Enforcement of Foreign Arbitral Awards ( New York Convention ) Presidential Decree Number 34 of 1981 regarding Ratification of the New York Convention 2 General Regime Relevant Jurisdiction(s) Corresponding Section Below Indonesia Section 2 All countries signatory to the Convention All countries signatory to the Convention Section 2 Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Under Article 436 of the RV (Reglement of de Rechtsvordering an Indonesian civil procedural regulation from the colonial era), a foreign court judgment cannot be enforced in Indonesia directly. To enforce one, a new lawsuit must be filed in an Indonesian court. The foreign court judgment may be introduced as evidence in the new proceedings, although in principle the Indonesian court will not be bound by the findings of the foreign court. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? In principle, foreign court judgments are not immediately enforceable in Indonesia. A new lawsuit must be filed in the relevant district court in Indonesia. The judgment of the foreign court will be given such evidentiary weight as the Indonesian court deems appropriate. It is to be presented to an Indonesian court in authentic form. In addition, a certified translation of the judgment into the Indonesian language must be provided to the relevant Indonesian court. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? As explained above, foreign court judgments are not directly enforceable in Indonesia. Indonesian courts have, however, recognised declaratory judgments (such as decisions regarding the ownership of goods, validity or nullity of marriage, etc.) and constitutive judgments (such as decisions concerning the appointment of a guardian, bankruptcy, etc.) issued by foreign courts on the basis that these judgments do not need any execution from the Indonesian courts and merely establish rights and duties of persons in certain situations. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. To enforce foreign court judgments in Indonesia, a new lawsuit must be filed in the relevant district court in Indonesia. The judgment of the foreign court will be given such evidentiary weight as the Indonesian court deems appropriate. The procedure will effectively amount to a retrial. In general, the Indonesian court will not be bound by the findings of the foreign court. It can take between five months to one year to obtain a decision of a district court in Indonesia. The losing party at the district court may file an appeal in the relevant High Court. It can also take between five and twelve months to obtain a High Court decision. The losing party at the High Court may then file an appeal to the Supreme Court. It can take two to five years for a ruling to be issued on an appeal to the Supreme Court. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Basically, foreign court judgments cannot be directly enforced without new proceedings. A new lawsuit must be filed in the competent district court. At the end of the proceeding, the judge will decide on the case. The ruling will indicate whether the foreign 86 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

90 Makarim & Taira S. Indonesia court judgment can be enforced. When a party objects to the decision, they can challenge it by the following: (a) Appeal to High Court The losing party/the objection party at the district court level is entitled to appeal to the High Court within 14 days of the date of the decision. (b) Appeal to Supreme Court The losing party/objection party may appeal against the decision of the High Court by seeking an appeal to the Supreme Court. This appeal must be filed with the original district court within 14 days of the date on which the losing party receives the notice of the High Court s decision. The Supreme Court s decision is the final ruling of the case. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? This is not applicable in Indonesia. 2.7 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? This is not applicable in Indonesia. 2.8 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? 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? As explained above, foreign court judgments are not enforceable in Indonesia. International Arbitration Awards will only be recognised and may only be enforced within the jurisdiction of the Republic of Indonesia if they satisfy the following requirements: (a) The International Arbitration Award must have been rendered by an arbitrator or arbitration tribunal in a country which, together with the Republic of Indonesia, is a party to a bilateral or multilateral treaty on the recognition and enforcement of International Arbitration Awards. (b) International Arbitration Awards, as contemplated in point (a) above, are limited to awards which, under the provisions of Indonesian law, fall within the scope of commercial law. (c) International Arbitration Awards, as contemplated in item (a) above, may only be enforced in Indonesia if they do not violate public policy. (d) An International Arbitration Award may be enforced in Indonesia only after obtaining an order of Exequatur from the Chairman of the Central Jakarta District Court. An International Arbitration Award, as contemplated in point (a), where the Republic of Indonesia is one of the parties to the dispute, may only be enforced after obtaining an order of exequatur from the Supreme Court of the Republic of Indonesia, which order is then delegated to the Central Jakarta District Court for execution. Indonesia This is not applicable in Indonesia. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? This is not applicable in Indonesia Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 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? Arbitration law does not explain clearly regarding the difference between recognition and enforcement of an International Arbitration Award. 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. This is not applicable in Indonesia What is the relevant limitation period to recognise and enforce a foreign judgment? Since the enforcement of foreign court judgments must be followed by a new lawsuit which, subject to the Indonesian Civil Procedures Code, under Article 1967 of the Indonesian Civil Code, it is stated that all legal claims expire after 30 years. Therefore, a lawsuit to enforce foreign court judgments can be filed to the Indonesian district court during the above period. As explained in question 2.5 above, foreign court judgments cannot be directly enforced without new proceedings. To enforce an International Arbitration Award, an application must be submitted after the award is registered at the Central Jakarta District Court by the arbitrator(s) or their proxy. When registering the award, the following documents must be furnished: (1) the original International Arbitration Award, or a copy authenticated in accordance with the provisions on the authentication of foreign documents, together with an official translation of the text into the Indonesian language; (2) the original agreement which is the basis for the International Arbitration Award, or a copy authenticated in accordance with the provisions on the authentication of foreign documents, together with an official translation of the text into the Indonesian language; and ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

91 Makarim & Taira S. Indonesia Indonesia (3) a certificate from the diplomatic representative of the Republic of Indonesia in the country in which the International Arbitration Award was rendered stating that country and the Republic of Indonesia are bound by a bilateral or multilateral treaty on the recognition and implementation of International Arbitration Awards. Upon receipt of the above requirements, the Central Jakarta District Court will issue a deed of registration of the international arbitration award. Once registered, the applicant can request enforcement of the award to the same district court. 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? International Arbitration Award voluntarily, the steps to enforce the International Arbitration Award are as follows: (a) file a petition for a writ of execution (exequatur) the Central Jakarta District Court will then issue the Exequatur Order (Penetapan Exequatur); (b) file a petition to the Central Jakarta District Court to summon the respondent to appear in court to be officially warned (aanmaning) to implement the International Arbitration Award and the Exequatur Order; and (c) file a petition to the Central Jakarta District Court to seize the respondent s assets and sell them through public auction if the respondent denies or refuses to comply with the court s demand as explained above for whatever reasons. The above procedures are subject to Indonesian Civil Procedure Law. As explained in question 2.5 above, foreign court judgments cannot be directly enforced without new proceedings. However, what can be challenged is the judge s decision through the following ways: (a) Appeal to High Court The losing party/objection party at the district court level is entitled to appeal to the High Court within 14 days of the date of the decision. (b) Appeal to Supreme Court The losing party/objection party may appeal against the decision of the High Court by seeking an appeal to the Supreme Court. This appeal must be filed with the original district court within 14 days of the date on which the losing party receives the notice of the High Court s decision. Furthermore, an International Arbitration Award may be challenged in the following ways: (a) Appeal to the Supreme Court An appeal to the Supreme Court can be filed only against a decision of the Chairman of the Central Jakarta District Court that refuses to recognise and enforce an international arbitration award. The Supreme Court must consider and rule on the appeal application within 90 days of receipt of the appeal case. A decision of the Chairman of the Central Jakarta District Court that confirms and implements an international arbitration award cannot be appealed either to the High Court or the Supreme Court. (b) Annulment Under Article V paragraph 1 (e) 1958 of the New York Convention, annulment of the award may only be requested in the place where the arbitration was held. 4 Enforcement 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. We found no records of notable updates and no official statistics were published on the development of enforcement of International Arbitral Awards. However, it may be encouraging to see the increasing number of exequaturs (execution writ) granted to enforce International Arbitral Awards in Indonesia, from just 1 in 2,000 to 10 in The number of awards which had been registered and for which enforcement was sought has tended to increase since 2011, and escalated quite dramatically in The above record indicates, among other things, that the Central Jakarta District Court has approved the registration of many international awards. As explained above, one requirement to apply for exequatur is that the award must be registered with the Central Jakarta District Court, as proven by the registration deed. 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? Unfortunately, there is no certain timeframe to enforce a foreign arbitral award in Indonesia. The process can take a very long time, especially if the respondent has dispersed its assets to make them difficult to find. 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Once a foreign arbitral award has been registered in the Central Jakarta District Court, if the respondent does not implement the 88 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

92 Makarim & Taira S. Indonesia Alexandra Gerungan Makarim & Taira S. Summitmas I, 16 th 17 th Floors Jl. Jendral Sudirman Kav Jakarta Indonesia Tel: / alexandra.gerungan@makarim.com URL: Alexandra Gerungan is a Partner dealing with litigation/dispute resolution at Makarim & Taira S. She has successfully handled litigation and dispute resolution cases across highly diverse sectors. Her experience ranges from civil lawsuits to arbitration; alternative dispute resolution; anti-corruption investigation; employment issues; land/property cases; insurance, banking and future exchange claims/ disputes; police investigations (for example related to allegations of forestry and environmental crimes); and internal/independent investigations. She also advises on related matters such as due diligence and general investigations, liquidation, bankruptcy/suspension of payment, and land/property issues. Drawing on her experience, she is moreover able to advise clients on transaction structures, agreements and general business practices with a view to preventing the emergence of future disputes or issues. Alexandra is a frequent contributor to and a co-author of various reports, articles and publications on litigation, arbitration, alternate dispute resolution, environment matters, rule of law, compliance issues and labour law. Her articles have appeared internationally in publications by Law Business Research, Global Legal Group and World Justice Project. She has also been invited as a speaker for seminars and workshops on litigation, arbitration, dispute settlement alternatives and insolvency. Hendrik Alfian Pasaribu Makarim & Taira S. Summitmas I, 16 th 17 th Floors Jl. Jendral Sudirman Kav Jakarta Indonesia Tel: / hendrik.pasaribu@makarim.com URL: Hendrik Alfian Pasaribu is an Associate in the Firm s Corporate Commercial and Litigation groups. Hendrik has involved in various general corporate matters including a power project in connection with land acquisitions in Central Java. Hendrik has also extensive experience in assisting clients in litigation and dispute resolution. Indonesia Established in 1980 by two Harvard graduates, Nono Anwar Makarim and Frank Taira Supit, Makarim & Taira S. is a leading business law firm in Indonesia offering a full range of corporate, banking, litigation and specialist legal services to national and international clients. Our long-standing reputation with policymakers, regulators, state-owned companies and leading industry groups provides us with important insights into the latest government policies and industry positions. The firm has received recognition in a number of leading international legal guides and surveys by advising many clients on innovative deals. We are committed to providing excellent service in a timely and commercially-oriented manner. From the initial foreign investment decision to the establishment and operation of a successful Indonesian business, from dispute resolution to M&A, the firm has long become the favoured, trusted Indonesian counsel in providing practical solutions and advice on every aspect of doing business in Indonesia. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

93 Chapter 17 Ireland Julie Murphy-O Connor Matheson Gearóid Carey 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 Common Law EU Regulation 1215/2012 (for relevant proceedings commenced on or after 10 January 2015) EC Regulation 44/2001 (for relevant proceedings commenced before 10 January 2015) Lugano Convention New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 EC Regulation 805/ General Regime Relevant Jurisdiction(s) Judgments from all countries to which EU Regulation 1215/2012 and the Lugano Convention do not apply (i.e. all countries other than EU countries, Norway, Switzerland and Iceland) Corresponding Section Below Section 2 EU countries Section 3 EU countries Section 3 EU countries, Norway, Switzerland and Iceland Section 3 Arbitration awards rendered in countries Section 3 which are signatories to the Convention EU countries where the Section 3 claims are uncontested 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? The general Common Law regime of the legal framework under which a foreign judgment, being civil or commercial (but not insolvency) judgments from all countries to which EU Regulation 1215/2012, EC Regulation 44/2001 or the Lugano Convention do not apply, would be recognised and enforced in Ireland is set out below. Recognition and enforcement of a foreign judgment is pursued by way of commencing fresh proceedings by way of an originating High Court summons. Any fresh proceedings commenced are required to be issued by the Central Office of the High Court and served on the defendant/judgment debtor. For non-eu and non- Lugano Convention judgments, leave of the High Court must first be obtained to issue and serve the proceedings out of the jurisdiction. Order 11, Rule 1(q) of the Rules of the Superior Courts identifies that such leave may be granted in cases brought to enforce any foreign judgment. As addressed below, since recognition and enforcement of foreign judgments is permissible only in respect of money judgments, a party seeking recognition and enforcement of a foreign money judgment may proceed by way of summary summons (which in domestic procedure is, inter alia, reserved for claims for a debt or liquidated sums). 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? The relevant prerequisites to be met under Irish common law in order for a court to recognise and enforce a foreign judgment are: (a) the foreign judgment must be for a definite sum and therefore only money judgments may be enforced. Moreover, Irish courts will not enforce foreign revenue, penal or other public laws, whether directly or through the recognition of a foreign judgment; (b) the foreign judgment must be final and conclusive, which means that it must be final and unalterable by the court that pronounced it. Even if an appeal is pending, the judgment may still be considered final and conclusive unless the appeal has the effect of staying the judgment; and (c) the judgment against the defendant must be given by a court of competent jurisdiction. This means that the foreign court must have had jurisdiction under Irish conflict of law rules to deliver the final and conclusive judgment in respect of which recognition and enforcement is sought. Submission to the jurisdiction of the foreign court by the defendant will usually arise by virtue of a prior agreement to that effect or by participation in the foreign proceedings, or through presence in the jurisdiction at the time of the proceedings. Assertion of jurisdiction by a foreign court on the bases of nationality or allegiance of the defendant, the domicile of the defendant, reciprocity, the cause of action accruing in the foreign country or the possession of property by the defendant in the foreign country may not of themselves be sufficient bases for the Irish courts to accept that the foreign courts had jurisdiction ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

94 Matheson Ireland For recognition and enforcement of foreign judgments, a verified/ certified/sealed copy of the foreign judgment is required. If the foreign judgment is not in an official language of the State (i.e. English or Irish), it will need to be translated into either Irish or (more usually) English. If the foreign judgment has been obtained in default, proof of service of the judgment on the defendant/ judgment debtor will also be required. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Recognition is the process of giving the same effect or status to the judgment in the country where enforcement is sought as it has in the state where the judgment was given. Under Irish law, enforcement is typically understood as being made the subject of a process of execution. As a precursor to that, however, the judgment will need to be recognised, such that recognition of a judgment is, save in very limited circumstances, a precondition to enforcement. Since only foreign money judgments may be recognised and enforced in Ireland, it would be extremely unusual for recognition to be sought on its own as enforcement (execution) is typically the objective in pursuing the proceedings. (e) where the judgment is inconsistent with an earlier judgment based on the same cause of action between the same parties (whether analysed on a res judicata or estoppel basis see the responses at questions 2.7 and 2.8 below). As a general principle, and on the basis of respect and comity between international courts, the approach of the Irish court to proceedings seeking recognition and enforcement is generally positive. Challenges to proceedings seeking recognition and enforcement are rare and, since Irish authority is limited, it is not possible to offer any real view on whether judgments from certain or specific countries are subject to greater scrutiny. Most challenges would be brought as a defence to the request for recognition and enforcement as part of the substantive case. However, it would be usual that a challenge to the jurisdiction of the Irish court would be raised as a preliminary issue. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? The legal framework relevant to the general regime is applicable in all cases save as identified in section 3 below. Accordingly, there is no subject matter-specific legal framework. Ireland 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Where an application for leave to issue and serve the proceedings out of the jurisdiction is required to be made to the High Court, this will usually be done on an ex parte basis, grounded upon an affidavit. That affidavit will generally recite the history of the matter and will exhibit the documents referred to above at question 2.2. It will also usually aver to the fact that the judgment involved is a money judgment, is final and conclusive and was delivered by a court of competent jurisdiction and is enforceable in that jurisdiction. Once the (summary) summons has issued and been served, the next step for the plaintiff is to issue a motion seeking an order for recognition/enforcement. That motion is also grounded on affidavit and it would also usually exhibit the documents referred to above and make the same averments as would be made when seeking leave to issue and serve the proceedings out of the jurisdiction. If the defendant/judgment debtor has not entered an appearance to the fresh Irish proceedings, the plaintiff will need to put evidence of service of the originating summons and the motion before the court by way of affidavit. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Recognition/enforcement of a foreign judgment can be challenged on a number of grounds. The High Court has a discretion to refuse recognition and enforcement of a foreign judgment on the following bases: (a) fraud in procuring the foreign judgment (irrespective of whether fraud has been raised as a defence in the foreign proceedings or not); (b) lack of jurisdiction (whether of the foreign court or the Irish court); (c) it is contrary to Irish public policy; (d) it is contrary to principles of natural justice (such as the right to be given due notice of the proceedings, an opportunity to be heard by an impartial tribunal, etc.); and 2.7 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? There is no specific Irish authority which identifies the approach of the Irish court to recognition and enforcement of a foreign judgment in such circumstances. However, a conflicting local judgment on the same or similar issue involving the same parties could (based on persuasive English authority) be a basis on which recognition and enforcement might be refused, depending on which judgment has priority. In determining priority, it would appear from other persuasive Common Law authority that the judgment to be given priority is to be determined by reference to that which was first rendered. Accordingly, a conflicting local judgment should only be effective in precluding recognition and enforcement of a foreign judgment where the local judgment was first rendered. It follows, therefore, that the existence of pending local proceedings should have no effect on the recognition and enforcement of a foreign judgment which, on the basis of the first in time approach, has priority. 2.8 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? There is no specific authority which identifies the approach of the Irish court to recognition and enforcement of a foreign judgment where there is a conflicting local law or prior judgment on the same or similar issue, but between different parties. However, as a general principle, the Irish court has no power to revisit or reconsider a judgment pronounced by a court which was competent to exercise jurisdiction over the parties. That is a matter that should be determined locally. There is authority from other common law jurisdictions (which would be persuasive before an Irish court) that foreign judgments premised on legal principles which are contrary to those applicable ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

95 Matheson Ireland Ireland in the jurisdiction where recognition and enforcement is sought are still capable of being recognised and enforced. A prior judgment on the same or similar issue involving different parties should not preclude an Irish court from recognising and enforcing a foreign judgment. The fact that different parties are involved means that the criteria for (i) res judicata, and (ii) cause of action and issue estoppel which might otherwise be a basis for refusing recognition and enforcement are not capable of being met. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? Although there is no specific authority which identifies the Irish court s approach to recognition and enforcement of a judgment which purports to apply Irish law, as a general principle, the Irish court is not entitled to investigate the propriety of proceedings before the foreign court and, if a party is dissatisfied with the outcome of those proceedings, its recourse is by way of appellate proceedings in the forum of the judgment. Arising from that same general principle, the Irish court has no power to revisit or reconsider a judgment pronounced by a court which was competent to exercise jurisdiction over the parties. Moreover, there is old English authority (which is persuasive before the Irish courts) to the effect that an alleged mistake as to English law as applied by the foreign forum does not excuse a defendant from performing the obligations imposed upon it by the judgment. Accordingly, there should be no difference in the approach of the Irish court to recognition and enforcement of a foreign judgment that purports to apply Irish law such that it may not be impeached as to its merits Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. Ireland does not have a federal or state court system with different regimes, rules and procedures. Rather, the rules and procedures applicable in Ireland to the recognition and enforcement of foreign judgments are uniform What is the relevant limitation period to recognise and enforce a foreign judgment? On the basis that the obligation to pay the original foreign judgment is treated as being analogous to a breach of contract claim, the limitation period for actions based on a foreign judgment may not be brought after the expiry of six years from the date on which the foreign judgment became enforceable in the jurisdiction where rendered. 3 Special Enforcement Regimes Applicable to Judgments from Certain Countries 2015, and to judgments given on or after that date. It replaces EC Regulation 44/2001 which continues to apply to earlier proceedings and judgments. Both EU Regulation 1215/2015 and EC Regulation 44/2001 apply to questions of jurisdiction and the recognition and enforcement of judgments in civil and commercial disputes, although certain matters remain outside the scope of the legislation, such as revenue, customs and administrative matters, as well as certain disputes relating to bankruptcy and insolvency, family law, social security, arbitration and succession. Under EU Regulation 1215/2012, no declaration of enforceability is required for the enforcement of an EU Member State judgment to which it applies. In order to pursue enforcement, an applicant will need a copy of the judgment which satisfies the conditions necessary to establish its authenticity and a certificate issued pursuant to Article 53, certifying the judgment is enforceable, containing an extract of the judgment and information about the costs of the proceedings and the calculation of interest. A translation of the certificate may be required by the competent enforcement authority in the Member State where enforcement is to be pursued, but such authority may require translation of a judgment only if it cannot proceed without it. For the enforcement of an EU Member State judgment to which EC Regulation 44/2001 applies, a declaration of enforceability is required for the enforcement of such judgments, in respect of which an application must be made to the High Court (known as the exequatur procedure). To pursue an application for enforcement of such a judgment, or a judgment to which the Lugano Convention applies, an original, certified or otherwise authenticated written decision or order (which may need to be translated into Irish or, more usually, English) which is final and conclusive with regard to the subject matter of the dispute is required. Finality in that context means final by reference to the court which pronounced it. It does not matter that it may be subject to an appeal, albeit that recognition and enforcement proceedings may be stayed by the High Court in the event that an appeal is lodged. For enforcement of foreign arbitral awards, the award must be in writing and be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of the tribunal will suffice, so long as the reason for any omitted signature is set out. The award should also state its date and the place of arbitration. EC Regulation 805/2004 applies in civil and commercial matters to judgments, court settlements and authentic instruments in uncontested claims for payment of a specific sum of money. The judgment creditor is only required to present the competent enforcement authorities of the Member State of enforcement with: (a) a copy of the judgment; (b) a copy of the European Enforcement order certificate; and (c) where necessary, a certified translation into a relevant official language. 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? 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? EU Regulation 1215/2012 came into effect on 10 January 2015 and it applies to proceedings commenced on or after 10 January In practical terms, those regimes do not distinguish between recognition and enforcement by reference to the formal requirements to be satisfied. However, since (i) judgments issued by EU or Lugano Convention courts, or (ii) foreign arbitral awards rendered in countries signatories to the New York Convention both may involve rulings/reliefs which are not limited to money judgments, e.g. declaratory relief, there are more likely to be instances where recognition is pursued separately without the need to seek enforcement (i.e. execution) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

96 Matheson Ireland 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. For judgments issued by the courts of EU Member States on or before 10 January 2015, Regulation 1215/2012 provides that they shall be enforceable without any declaration of enforceability being required. Such a judgment can now be enforced in the Member State addressed as if it were a judgment given by the courts of that Member State. For judgments issued by Lugano Convention courts and for judgments from EU Member States in proceedings issued before 10 January 2015 (which are therefore subject to EC Regulation 44/2001), a declaration of enforceability must be obtained. The relevant requirements to make such an application are detailed in Order 42A of the Rules of the Superior Courts. Such applications are made ex parte to the Master of the High Court grounded on affidavit. Formally, the affidavit should exhibit: (i) the judgment which is sought to be enforced or a certified or otherwise duly authenticated copy thereof; (ii) if given in default, the original or certified copy of a document which establishes that the party in default was served with the document instituting the proceedings (or equivalent documents) in sufficient time to enable him to arrange his defence; and (iii) documents which establish that, according to the law of the state in which it has been given, the judgment is enforceable and has been served. If necessary, translations of those documents in Irish or (more usually) English should also be exhibited. The affidavit should also identify whether the judgment provides for payment of a sum of money, whether interest is recoverable (and if so the basis on which it accrues), address details for the parties, the grounds on which the right to enforce the judgment vests in the party making the application and, as necessary, a statement that the judgment has not been (fully) satisfied. For foreign arbitral awards to be recognised and enforced under the New York Convention, the applicant shall furnish (i) the duly authenticated original award or a duly certified copy thereof, and (ii) the original arbitration agreement pursuant to which the arbitration was conducted or a duly certified copy thereof. If those documents are not in an official language (i.e. Irish or English), the applicant shall produce the necessary translations, which translations should be certified by an official or sworn translator or by a diplomatic or consular officer. For foreign arbitral awards to be recognised and enforced under the New York Convention, Order 56 of the Rules of the Superior Courts dictates the procedure. An application for recognition and enforcement of a foreign arbitral award is commenced by way of originating notice of motion which is to be returnable before the President of the High Court or the judge nominated as the judge to hear all arbitration-related matters. The originating notice of motion is grounded on affidavit which should set out the basis on which the court has jurisdiction to grant the relief sought and should exhibit the arbitral award and arbitration agreement (and translations thereof), as referenced at question 3.1 above. If the respondent wishes to challenge the application for recognition and enforcement of the award, they may put in a replying affidavit and the court may, if it deems it appropriate, make directions for the conduct of the proceedings prior to determining the application (which may involve further affidavits). The application will typically be determined at a hearing on the basis of the affidavit evidence exchanged with the benefit of oral and, possibly, written legal submissions. For EC Regulation 805/2004, if the underlying money claim is not contested by a debtor such as where he has agreed to it or raised no objection the creditor may, in addition to obtaining judgment from the relevant EU Court, request that the judgment obtained be certified as a European Enforcement Order in the state of origin. Subject to meeting specified minimum procedural standards set out in Chapter III of the Regulation, a certificate will issue from the Member State of origin which provides that the judgment shall be recognised and enforced under the same conditions as a judgment handed down in the Member State of enforcement. To pursue such enforcement, the creditor simply submits the judgment, the European Enforcement Order certificate and any necessary translation to the competent enforcement authority in the Member State addressed. 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? For judgments from EU Member States, Regulation 1215/2015 provides that such judgments shall be recognised without any special procedure being required and that they shall be enforceable without any declaration of enforceability being required. However, Article 45 provides that recognition may be refused on a number of grounds (which are the same as apply under the Lugano Convention and EC Regulation 44/2001 for EU judgments in proceedings issued before 10 January 2015 (Articles 34 and 35 of both instruments see below)) and the applicant for refusal may also seek relief in relation to the enforcement being sought. For judgments subject to EC Regulation 44/2001 or the Lugano Convention, once the formal requirements as identified at question 3.1 above have been met, subject to specific exceptions in those instruments, the Master of the High Court has no jurisdiction to refuse recognition of the judgment. Those exceptions are as follows: (i) where it is manifestly contrary to public policy in the state addressed; (ii) where the judgment was given in default, if the defendant was not served with the document that instituted the proceedings or equivalent in sufficient time and in such a way was to enable him to arrange his defence; (iii) if the judgment is irreconcilable with a judgment given between the same parties in the state addressed; (iv) if the judgment is irreconcilable with an earlier judgment in another state involving the same cause of action and same parties, so long as the earlier judgment fulfils the criteria for recognition in the state addressed; and (v) if the judgment conflicts with the jurisdictional principles applicable to claims involving insurance, consumer contracts, contracts of employment or cases where exclusive jurisdiction is mandated. An appeal of the decision of the Master may be made within one month of the date of the enforcement order and must be on notice. If the enforcement order is refused, the applicant can appeal to the High Court within five weeks from the date of the refusal of the order. For foreign arbitral awards, once the formal requirements identified at question 3.1 above have been met, and the procedure referenced at question 3.3 above has been followed, the only grounds on which recognition and enforcement might be refused are those set out at Article V of the New York Convention and Article 35 of the UNCITRAL Model Law (which is applicable under Irish law pursuant to the Arbitration Act 2010). Article V of the New York Convention and Article 35 of the UNCITRAL Model Law are essentially identical and both provide that the grounds on which recognition and enforcement of a foreign arbitral award might be refused are as follows: Ireland ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

97 Matheson Ireland Ireland (a) if a party to the arbitration agreement was under some incapacity, or if the arbitration agreement is not valid under the law applicable to it or under the law of the country where it was made; (b) where the party against which the award was made was not given proper notice of the appointment of the tribunal or of the arbitral proceedings or was otherwise unable to present their case; (c) if the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or if it contains decisions on matters beyond the scope of the submission to arbitration; (d) if the composition of the tribunal 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; (e) if the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; and (f) if the court finds that (i) the subject matter of the dispute is not capable of settlement by arbitration under Irish law, or (ii) the recognition or enforcement of the award would be contrary to Irish public policy. There is, in addition, a preliminary question under Irish law as to whether the Irish courts have jurisdiction over the subject matter of the dispute where the parties have no direct connection with Ireland, in which case it must be established that a solid practical benefit arises to the applicant in seeking recognition and enforcement of the foreign arbitral award in Ireland. Challenges are typically raised in seeking to defend an application by the successful party in the arbitration to seek recognition and enforcement of the award. Since arbitration awards are a creature of contract, under Irish law any application for recognition and enforcement must be brought within six years of the rendering of any such award. Under Article 21(2) of EC Regulation 805/2004, the judgment or its certification as a European Enforcement Order may not be reviewed as to their substance in the Member State of enforcement. Enforcement only can be refused by the Member State of enforcement if the judgment certified is irreconcilable with an earlier judgment given in another state, provided that: (a) the earlier judgment involved the same cause of action and was between the same parties; (b) the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition in the Member State of enforcement; and (c) the irreconcilability was not and could not have been raised as an objection in the court proceedings in the Member State of origin. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? A judgment creditor, including one with a foreign judgment which has been recognised and enforced, may exercise a number of options to collect a judgment debt including the following: (a) An Execution Order (or Order of Fieri Facias) orders the seizure and sale of goods belonging to the judgment debtor in Ireland by publicly appointed sheriffs. In reality, this is frequently ineffective. (b) (c) (d) (e) (f) (g) A judgment mortgage may be registered against real property in Ireland owned by the judgment debtor and will then operate as if the judgment debtor had mortgaged the property to the judgment creditor. If payment is not made, the judgment creditor can force the sale of the property by court application and can take the debt owed from the proceeds of the sale. A Charging Order may be obtained by the judgment creditor over any Irish Government stock, funds, annuities, or any stocks or shares in any public or private company in Ireland owned by the judgment debtor. An application to the Irish Courts may also be made to charge stock of an Englishregistered company carrying on business in Ireland. Where a charging order is made, the relevant shares/securities stand charged with the payment of the judgment debt, until the debt has been repaid. Generally, the charging order will provide that the chargee is entitled to all such remedies as he would have been entitled to as if such charge had been made in his favour by the judgment debtor. A charging order will take effect subject to any prior ranking security in respect of the relevant shares or securities. Once the charging order is made absolute and served on the debtor, the debtor may not transfer or otherwise dispose of the shares. Garnishee orders may be sought where it appears that the debtor has no assets of his own but there is money due and owing to him from a third party based in Ireland (the garnishee ). In those circumstances, the judgment creditor may seek to have that debt paid to him instead. The garnishee must be within the jurisdiction, although a garnishee may include a firm, any member of which is resident within the jurisdiction. Such a debt may include a credit balance on the judgment debtor s bank account. A judgment creditor can apply to Court, without notice to any other party, for a conditional order preventing the garnishee from repaying the debt to the judgment debtor, pending a hearing, at which the judgment debtor is entitled to attend to show cause why the order should not be made absolute. Once the order is made final (i.e., an absolute garnishee order is granted) and upon service of the garnishee order on the garnishee, the garnishee is obliged to pay the debt owed to the judgment debtor directly to the judgment creditor. A receiver by way of equitable execution may be appointed over the judgment debtor s Irish property. Equitable execution is a mode of relief granted to the judgment creditor where the ordinary methods of execution are unavailable or unlikely to be effective and all other reasonable available avenues to execute the judgment have been exhausted. Future assets may be attached, in appropriate circumstances, in this manner. In certain cases, a receiver may be appointed by way of equitable execution even before judgment in order to prevent dissipation of assets pending a judgment. Appointment of a receiver by way of equitable execution does not give a judgment creditor any mortgage, lien, or charge over the assets to which he is appointed. If the receiver takes possession of the relevant assets, he does so not for the judgment creditor, but for the court and an application for directions as to how to deal with the property is required to be made, for example, to sell the property and pay the proceeds over to the judgment creditor. Liquidation of an Irish-registered debtor company can also be effective in securing payment. A judgment creditor can petition the court for the appointment of a liquidator to wind up the judgment debtor company (if Irish) and to realise the assets of the company for the benefit of its creditors. Directors of a liquidated Irish company could, if the liquidator believes it appropriate, be subject to proceedings themselves and could, in exceptional circumstances, be made personally liable for the debts of the debtor company. A judgment creditor can also seek an order to obtain information from the judgment debtor about its assets. Applications under this procedure, known as discovery in aid of execution, are made on an ex parte basis. The Court may order the attendance of the judgment debtor (or officers of a 94 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

98 Matheson Ireland corporation) for oral examination and/or the provision by the judgment debtor of documentation prior to examination. This is not effective where the judgment debtor is not domiciled or registered in Ireland. 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? 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. Whilst there is limited Irish case law relating to the recognition and enforcement of foreign judgments, judgment has been delivered within the last year in a significant Commercial Court case. In Albaniabeg Ambient Sh.p.k. v. Enel SpA and Enelpower SpA [2016] IEHC 139, Judge McDermott confirmed that for the Irish courts to exercise jurisdiction over proceedings which seek recognition and enforcement of a foreign judgment, there must be a solid practical benefit to be obtained from the making of an order to that effect. In order to demonstrate such benefit, a plaintiff/applicant will need to establish that the judgment debtor has, or is likely to have, assets within the jurisdiction against which to enforce the foreign judgment. Accordingly, the decision confirms the existence of a jurisdictional hurdle that a party seeking to recognise and enforce a foreign judgment may be faced with even prior to being allowed to raise any defence of a substantive nature. Based on the decision in Enel (as referenced above and analogous authority dealing with the enforcement of a foreign arbitral award), prior to commencing proceedings seeking recognition and enforcement of a foreign judgment in Ireland, a potential applicant should be satisfied that there is a solid practical benefit to bringing those proceedings in Ireland. Although having assets in the jurisdiction is not a prerequisite to successfully obtaining an order for recognition and enforcement of a foreign judgment, as a practical matter the potential applicant should be able to satisfy the Irish court that, even if there are currently no assets in Ireland against which to enforce, making an order for recognition and enforcement is not an exercise in futility. If there is no solid practical benefit to a plaintiff/applicant in obtaining an order for recognition and enforcement, the proceedings are likely to be susceptible to a jurisdictional challenge which, depending on the extent of the benefit that can be established, is likely to succeed. It should also be borne in mind that proceedings seeking recognition and enforcement of foreign judgments or awards, if challenged, can result in significant costs and further delay before a determination is reached. Furthermore, under Irish law, a determination in respect of the recognition and enforcement of a foreign judgment is subject to an automatic right of appeal to the Court of Appeal (and any further appeal can only be brought in limited circumstances). This potentially can add further to the costs of such proceedings and to the time before an ultimate decision on recognition and enforcement is made. Ireland ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

99 Matheson Ireland Julie Murphy-O Connor Matheson 70 Sir John Rogerson s Quay Dublin 2 Ireland Gearóid Carey Matheson 70 Sir John Rogerson s Quay Dublin 2 Ireland Ireland Tel: julie.murphy-oconnor@matheson.com URL: Julie Murphy-O Connor is a Partner in Matheson, practising in all aspects of contentious and non-contentious restructuring, recovery and insolvency law matters and is an experienced litigator specialising in banking and financial services and shareholder disputes. Julie was a member of Council of the Irish Society of Insolvency Practitioners from 2011 to 2014 during which time she acted as secretary and as chair of its educational committee. Julie is a regular contributor to Irish and international legal publications. She lectures on insolvency law and directors duties at the Law Society of Ireland and Dublin Solicitors Bar Association. She is co-author of the Law Society s insolvency manual. She is a member of the Commercial Litigation Association of Ireland and co-author of the Practitioner s Guide to the Commercial Court in Ireland. Julie is a non-executive director of Coillte Teoranta (Irish State forestry company). She is ranked as one of Ireland s top insolvency lawyers by international legal directories. Tel: gearoid.carey@matheson.com URL: Gearóid Carey is an Associate in the Commercial Litigation and Dispute Resolution Group at Matheson. He advises in relation to general commercial disputes, principally focusing on corporate disputes and other contractual claims, particularly bank-related claims. He has significant experience in relation to the enforcement of domestic, EU and foreign judgments and in relation to the enforcement of arbitral awards. He is admitted as a solicitor in Ireland, Northern Ireland and in England and Wales, having trained and qualified with a leading City of London law firm. Gearóid has worked as a tutor in law at University College, Cork and he also tutors in litigation on the Law Society of Ireland professional practice courses and has worked as a Judicial Assistant at the Court of Appeal, London. He has published numerous articles in legal journals and texts. Gearóid is the Irish correspondent for the International Law Office (ILO) litigation newsletter. He is also a Member of the Chartered Institute of Arbitrators, the Irish Society of Insolvency Practitioners and Dublin Solicitors Bar Association, where he is a member of the Commercial Law Committee. Matheson s primary focus is to serve the Irish legal needs of international companies and financial institutions doing business in and through Ireland. It is a full service law firm with more than 20 distinct practice areas whose clients include 27 of the world s 50 largest banks and more than half of the Fortune 100 companies. We are headquartered in Dublin and also have offices in London, New York and Palo Alto. More than 600 people work across our four offices, including 74 partners and tax principals and over 350 legal and tax professionals. Our strength in depth is spread across more than 20 distinct practice areas, including asset management and investment funds, aviation and asset finance, banking and financial services, commercial litigation and dispute resolution, corporate, healthcare, insolvency and corporate restructuring, insurance, intellectual property, international business, structured finance and tax. This broad spread of expertise and legal know-how allows us to provide best-in-class advice to clients on all facets of the law ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

100 Chapter 18 Kenya John M. Ohaga TripleOKlaw Advocates LLP Gloria Mwika 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 Foreign Judgments (Reciprocal Enforcement) Act, Chapter 43 of the laws of Kenya Principles of the Common Law on enforcement of foreign judgments as read with section 9 of the Civil Procedure Act, Chapter 21 of the laws of Kenya 2 General Regime Relevant Jurisdiction(s) Australia, Malawi, the Republic of Rwanda, Seychelles, Tanzania, Uganda, the United Kingdom and Zambia. Section 13 of the Act empowers the Minister (in charge of such matters) to extend the application of this Act to other countries that have made or will make reciprocal arrangements for the enforcement of Kenyan judgments Corresponding Section Below Sections 2 and 3 Non-designated countries Sections 2 and Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? In the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in common law. The High Court would take into account the common law principles of enforcement of foreign judgments and the provisions of section 9 of the Civil Procedure Act. The jurisdiction of the High Court is also exercised in compliance with Section 3 of the Judicature Act which provides that the jurisdiction of the High Court of Kenya is exercised in conformity with the Constitution, all other written laws and subject to certain qualifications and the substance of common law. A party must file a plaint at the High Court providing a concise statement of the nature of the claim, the amount of the judgment debt accompanied by a verifying affidavit, a list of witnesses and a bundle of documents, key among them a certified copy of the foreign judgment. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Section 9 of the Civil Procedure Act stipulates that a foreign judgment must be conclusive as to any matter directly adjudicated upon between the same parties or between the parties under whom they or any of them claim. Section 3(2) of the Foreign Judgments (Reciprocal Enforcement) Act stipulates that a foreign judgment shall be deemed to be conclusive even if it is the subject of an appeal or it may be subjected to an appeal in the foreign court. Section 9 of the Civil Procedure Act provides that the foreign judgment shall be deemed as inconclusive where: a) it has not been pronounced by a court of competent jurisdiction; b) it has not been given on the merits of the case; c) it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Kenya in which such law is applicable; d) the proceedings in the judgment obtained are opposed to the rules of natural justice; e) it has been obtained by fraud; or f) it sustains a claim founded on a breach of any law in force in Kenya. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? There is a difference between recognition and enforcement. The Foreign Judgments (Reciprocal Enforcement) Act makes this distinction by using the terms registration and execution of a foreign judgment. Recognition precedes enforcement. Recognition is when the foreign judgment is registered in the Kenyan courts in the manner set out by the Act. When a judgment has been registered, its execution shall be of the same force and effect as a judgment of the High Court and the procedure applicable for enforcement of a local judgment shall be applied. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

101 TripleOKlaw Advocates LLP Kenya Kenya 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. The Procedure is determined by the applicable legal regime. Where the foreign judgment is from a designated country, the Foreign Judgments (Reciprocal Enforcement) Act sets out the procedure as follows. Within six years of the date of the judgment, the Decree Holder may apply to the High Court to have the judgment registered. The application for registration of the judgment is accompanied by a certificate in the form set out in the schedule or to the same effect issued from the original court under seal and signed by a Registrar of the original court or authenticated by affidavit. The affidavit states that the judgment remains unsatisfied, that at the date of the application, the judgment can be enforced by execution in the country of original court and where only certain provisions are to be registered, the said provisions are stated in the affidavit. Unless otherwise ordered by the High Court, for judgments given by Superior Courts of a Commonwealth Country, the application for registration of the judgment must be accompanied by a certificate under seal and signed by a Judge or Registrar certifying that the court is a Superior Court. The High Court may request for provision of further evidence. Where the High Court is satisfied as to the proof of matters required by the Foreign Judgments (Reciprocal Enforcement) Act and any other rules of the Court, it may order that the judgment be registered. The High Court shall not register a judgment that has been wholly satisfied or one that could not be enforced by execution in the country of the foreign court. Common Law Where there is no reciprocal enforcement arrangement, the judgment is only capable of being enforced pursuant to the following procedure. A party files a plaint at the High Court providing a concise statement of the nature of claim, the amount of the judgment debt, supported by a verifying affidavit, a list of witnesses and a bundle of documents intended to be relied upon as well as a certified copy of the foreign judgment. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Recognition/enforcement of a judgment may be challenged on, inter alia, the following grounds: a) it was not pronounced by a court of competent jurisdiction; b) it was registered in contravention of the Foreign Judgments (Reciprocal Enforcement) Act; c) the foreign courts had no jurisdiction to hear and determine the dispute; d) the matter in relation to which the judgment was given, subsequent to the date of that judgment, and as a result of proceedings instituted prior to the institution of the proceedings in the foreign court, became the subject of a final and conclusive judgment in a court in Kenya which is irreconcilable with the judgment of the foreign court; e) the judgment was obtained by fraud; f) the judgment materially disregards provisions of Kenyan law which ought to have been taken into consideration; g) the judgment debtor was not duly served with the proceedings of the foreign court to enable him to defend the proceedings in the foreign court; h) the judgment debtor did not receive sufficient notice of the proceedings to enable him to defend the proceedings in the foreign court; i) the judgment having been taken on appeal in a court of the foreign country, has been reversed or otherwise set aside; j) the judgment debtor is a person who, under the principles of public international law, is entitled to immunity from the jurisdiction of the High Court; k) the rights under the judgment are not vested in the person by whom the application for registration was made; and l) the enforcement of the judgment would be manifestly contrary to public policy in Kenya. The challenge ought to be made at the earliest possible time when the facts relied upon came into the knowledge of the applicant. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Section 3 of the Foreign Judgments (Reciprocal Enforcement) Act outlines the judgments that apply to Kenya and those that do not. Section 3 specifies the judgments which the Act can enforce and those that cannot be enforced. For example, the Act applies with respect to a judgment of a designated court in civil proceedings under which a sum of money is made payable or an order for the delivery of movable property is made. The Act, however, does not apply to a judgment which stipulates that the sum of money is payable or an item of movable property is deliverable in respect of taxes, fines or penalties. 2.7 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? a) The judgment can be set aside in accordance with Section 10(2) of the Foreign Judgments (Reciprocal Enforcement) Act which provides that judgments can be set aside if the cause of action upon which the judgment was given had at the time of the application been subject to a final and conclusive judgment of a Kenyan court having jurisdiction to determine the matter. b) Where there are local proceedings between the parties, the High Court may stay the local proceedings upon establishing among other factors, regardless of whether the foreign judgment is final and conclusive. 2.8 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? A foreign judgment that is founded on an incorrect view or a refusal to recognise the law of Kenya shall be set aside by the High Court. The basis of this can be found under Section 9 of the Civil Procedure Act and Section 10 of the Foreign Judgments (Reciprocal Enforcement) Act. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? Where a foreign court has applied the law of Kenya in its judgment, the High Court will examine whether the application and interpretation of the laws of Kenya was correctly made. Where it appears on the face of the proceedings that the judgment is founded 98 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

102 TripleOKlaw Advocates LLP Kenya on an incorrect view or a refusal to appreciate the law of Kenya where it is applicable, the High Court would set aside such a decision Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No, there is uniform application of the law in Kenya What is the relevant limitation period to recognise and enforce a foreign judgment? Section 4(4) of the Limitation Act stipulates that an action for enforcement of a foreign judgment must be brought in Kenya within twelve (12) years of the date of the judgment. e) has been obtained by fraud; or f) where it sustains a claim founded on a breach of any law in force in Kenya. Common Law The common law principles on enforcement of foreign law judgments include: a) where a foreign court properly seized of jurisdiction directs that a certain sum be due from one person to another, a legal obligation arises to pay that sum; b) a foreign judgment obtained in circumstances that were contrary to principles of natural justice does not give rise to any obligation of obedience; and c) if a foreign judgment is to be enforced against a corporation it must be shown that at the relevant time, the corporation was carrying on business and it was doing so at a definite and to some reasonable extent, permanent place in the foreign country. Kenya 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? 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? It is only the Foreign Judgments (Reciprocal Enforcement) Act which creates a distinction between recognition and enforcement of a foreign judgment. Foreign Judgment (Reciprocal Enforcement) Act This is applicable to the following: a) a judgment or order of a designated court in civil proceedings where there is a lump sum payment of money; b) a judgment or order of a designated court where movable property is ordered to be delivered as part of a scheme for provision for or maintenance of a spouse or a former or reputed spouse or a child or any person who was the dependent of another; c) a judgment or order made by a designated court in a criminal proceeding for compensation for injury caused; d) a judgment made on appeal for the matters listed above; e) a judgment of a designated superior court for the costs of an appeal from a subordinate court whether or not it is a designated court; f) an arbitration award that is enforceable in a designated country; or g) interim payments to be made by a judgment debtor. Civil Procedure Act, Chapter 21 of the laws of Kenya The requirements set out under Section 9 of the Civil Procedure Act apply to foreign judgments from both designated and non-designated countries. As explained above, Section 9 of the Civil Procedure Act provides that foreign judgments shall be final and conclusive and shall be deemed as inconclusive where the judgment: a) has not been pronounced by a court of competent jurisdiction; b) has not been given on the merits of the case; c) appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Kenya where such law is applicable; d) where the proceedings in the judgment were obtained are opposed to the rules of natural justice; 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. Foreign Judgments (Reciprocal Enforcement) Act The Judgment Creditor makes an application to the High Court to have the judgment registered within six years of the date of the judgment. The application may be made without notice to the judgment debtor. The application for registration of the judgment is accompanied by a certificate in the form set out in the schedule or to the same effect issued from the original court under seal and signed by a registrar of the original court or authenticated by affidavit. The affidavit states that the judgment remains unsatisfied, that at the date of the application, the judgment can be enforced by execution in the country of original court and that where only certain provisions are to be registered they are stated in the affidavit. For judgments delivered by a Superior Court of a Commonwealth Country, the application for registration of the judgment must be accompanied by a certificate under seal and signed by a Judge or registrar certifying that the court is a Superior Court. If the above conditions have been fulfilled, the court registers the judgment and it is subject to the enforcement as a judgment of the High Court of Kenya. Common Law A party files a plaint at the High Court providing a concise statement of the nature of claim, the amount of judgment debt, supported by a verifying affidavit, list of witnesses and bundle of documents intended to be relied upon as well as a certified copy of the foreign judgment. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

103 TripleOKlaw Advocates LLP Kenya Kenya 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? Challenging of Judgments under the Foreign Judgments (Reciprocal Enforcement) Act Recognition/enforcement of a judgment may be challenged on, inter alia, the following grounds: a) it was not pronounced by a court of competent jurisdiction; b) it was registered in contravention of the Foreign Judgments (Reciprocal Enforcement) Act; c) the foreign courts had no jurisdiction to hear and determine the dispute; d) the matter in relation to which the judgment was given, subsequent to the date of that judgment, and as a result of proceedings instituted prior to the institution of the proceedings in the foreign court, became the subject of a final and conclusive judgment in a court in Kenya which is irreconcilable with the judgment of the foreign court; e) the judgment was obtained by fraud; f) the judgment materially disregards provisions of Kenyan law which ought to have been taken into consideration; g) the judgment debtor was not duly served with the proceedings of the foreign court to enable him to defend the proceedings in the foreign court; h) the judgment debtor did not receive sufficient notice of the proceedings to enable him to defend the proceedings in the foreign court; i) the judgment having been taken on appeal in a court of the foreign country, has been reversed or otherwise set aside; j) the judgment debtor is a person who, under the principles of public international law, is entitled to immunity from the jurisdiction of the High Court; k) the rights under the judgment are not vested in the person by whom the application for registration was made; and l) the enforcement of the judgment would be manifestly contrary to public policy in Kenya. The challenge ought to be made at the earliest possible time when the facts relied upon came into the knowledge of the applicant. Grounds for Challenging Recognition/Enforcement of Foreign Judgments under Common Law and the Civil Procedure Act The grounds for challenging a judgment under Common Law are the following: a) the judgment has not been pronounced by a court of competent jurisdiction; b) the judgment has not been given on the merits of the case; c) it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Kenya where such law is applicable; d) where the proceedings in the judgment obtained are opposed to the rules of natural justice; e) the judgment has been obtained by fraud; or f) where the judgment sustains a claim founded on a breach of any law in force in Kenya. The challenge ought to be made at the earliest possible time when the facts relied upon came into the knowledge of the applicant. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? A court may, upon application, order execution of a decree in several ways, including: ordering the delivery of any property to the decree-holder; ordering the attachment and sale of the property or sale of the property without attachment; appointment of a receiver; a garnishee order; attachment of debts or arrest; and detention of the judgment debtor. 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 the case of Jayesh Hasmukh Shah -vs- Navin Haria & Another, Civil Appeal No. 147 of 2009, the Court of Appeal held that the High Court, pursuant to the provisions of section 3 of the Judicature Act and its original and unlimited civil jurisdiction provided in Article 165(3) of the Constitution had jurisdiction to determine any issue relating to enforceability of foreign judgments from non-designated countries. The Appellant sought to enforce and execute in Kenya a judgment from Ethiopia that was not a designated country under the provisions of the Foreign Judgments (Reciprocal Enforcement) Act. The decision was delivered on 12 th February, 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? It is important that an applicant seeking enforcement of a foreign judgment in Kenya ensures that the foreign judgment is capable of being enforced in the country where the judgment was made. Equally important is that an action for enforcement of a foreign judgment must be brought within twelve (12) years of the date of the judgment. Kenyan courts are quite hesitant to grant extensions of time to institute an action that has otherwise expired ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

104 TripleOKlaw Advocates LLP Kenya John M. Ohaga TripleOKlaw Advocates LLP 5 th Floor, Block C, ACK Garden House 1 st Ngong Avenue, Off Bishops Road PO Box , Nairobi Kenya Gloria Mwika TripleOKlaw Advocates LLP 5 th Floor, Block C, ACK Garden House 1 st Ngong Avenue, Off Bishops Road PO Box , Nairobi Kenya Tel: johaga@tripleoklaw.com URL: Tel: gmwika@tripleoklaw.com URL: Kenya John M. Ohaga is the Managing Partner in the firm of TripleOKlaw LLP Advocates. He has more than 25 years post-qualification experience during which he has been involved in numerous complex litigation as well as high-value domestic and international arbitrations. He has been recognised for his high-quality work and expertise in dispute resolution by The Legal 500, Chambers Global and Best Lawyers. John was declared the 2010, 2016 and 2017 winner of the International Law Office (ILO) Client Choice Awards for Kenya in the category of litigation ( He is an experienced litigator and has a particular passion for commercial litigation. He advises many leading companies listed on the Nairobi Securities Exchange as well numerous private companies in addition to some of Kenya s largest state corporations. Moreover, he also has significant experience in other aspects of civil litigation including employment and labour disputes, landlord and tenant, public procurement, intellectual property and sports law among many others. Gloria Mwika is an Associate in the firm of TripleOKlaw Advocates LLP. Gloria has been involved in diverse litigation and dispute resolution processes in the field of commercial law, banking and regulatory compliance, receivership and liquidation of banking institutions, competition law, retirement benefits, land law as well as sports law. She is part of a team that represents a wide range of local and multinational clients and is frequently called upon to advise on client exposure, dispute resolution options and strategy. TripleOKlaw Advocates LLP is a leading Kenyan Law firm that provides a wide range of specialised legal services. We are known to provide efficient, effective and competent legal services in all aspects of commercial law including our top-notch litigation and dispute resolution practice. Our structure enables our lawyers to concentrate on their areas of expertise while training them to be flexible enough to undertake new and challenging work that may not be in their primary area of specialisation. In addition, our firm is a member of Meritas Law Firms Worldwide, an established global alliance of independent full-service law firms with a presence in 235 global markets. This enables us to navigate transnational legal issues with confidence. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

105 Chapter 19 Liechtenstein Thomas Nigg GASSER PARTNER Attorneys at Law Domenik Vogt 1 Country Finder Applicable Law/ Statutory Regime New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 Relevant Jurisdiction(s) Corresponding Section Below 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. All countries signatory to the Convention Section 3 Applicable Law/ Statutory Regime Treaty between the Principality of Liechtenstein and the Swiss Confederation on the recognition and enforcement of judgments and arbitral awards dated 25 April 1968 Treaty between the Principality of Liechtenstein and the Republic of Austria on the recognition and enforcement of judgments, arbitral awards, settlements and public deeds dated 5 July 1973 The Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children The European Convention of 20 May 1980 concerning the recognition and enforcement of decisions relating to custody rights for children Relevant Jurisdiction(s) Liechtenstein and Switzerland Corresponding Section Below Section 3 Liechtenstein and Austria Section 3 Austria, Belgium, China (Macao), Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, Liechtenstein, Netherlands, Norway, Portugal, Slovakia, Spain, Suriname, Sweden, Switzerland, Turkey 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, United Kingdom Section 3 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? 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 the EO, a formal recognition and thus an enforcement of a foreign judgment 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 summary court order is disputed, a specific procedure is instigated, the socalled 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. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? According to Art. 52 of the EO, a foreign judgment may only be enforced in Liechtenstein if and to the extent that this is stipulated in a treaty or if reciprocity is guaranteed by treaty or declaration of reciprocity. Therefore, in the absence of any applicable special regime, foreign judgments are principally not enforceable in Liechtenstein. Although a formal enforcement 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. To initiate the Reinstitution Procedure, a foreign public deed is required. In particular, a foreign judgment or a private acknowledgment of debt qualify as such. The foreign public deed ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

106 GASSER PARTNER Attorneys at Law Liechtenstein 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 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. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Liechtenstein law distinguishes between recognition and enforcement of judgments. Recognition extends the effects of a foreign judgment to the recognising country, whereas enforcement 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. If the requirements for recognition are met, the foreign judgment is recognised automatically. By contrast, a foreign judgment does not become enforceable until it has been declared enforceable. Thus, if a foreign judgment is recognised in Liechtenstein, all of its effects extend to Liechtenstein except for its enforceability. Depending on its nature and content, a foreign judgment only requires recognition or it may require recognition and enforcement. For instance, a declaratory can only be recognised, whereas a judgment granting performance additionally requires a declaration of enforceability. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 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 obligation 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 objection by the debtor, the creditor may in turn demand that the court set aside the debtor s objection and reinstitute the creditor 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 structured 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. 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 ). 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 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. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 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 accordingly in the civil register upon approval of the government or, in further instances, the board of appeal. 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. If the birth, marriage or civil union was registered in a foreign civil register, the changes regarding the civil status, citizenship, name or marital status as well as the corrections of birth, death, marriage Liechtenstein ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

107 GASSER PARTNER Attorneys at Law Liechtenstein Liechtenstein 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. 2.7 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? 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 proceedings 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 unnoticed. 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. 2.8 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? As already explained above, the conversion of a foreign judgment 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 judgment was rendered in accordance with the applicable law. In particular, the Liechtenstein courts may verify whether the judgment 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. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? 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 applied Liechtenstein substantive law correctly Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 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 What is the relevant limitation period to recognise and enforce a foreign judgment? 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 limitation period has been applicable to the underlying claim. The limitation period is interrupted as soon as a motion for enforcement is filed with the competent court, provided that it is granted eventually. 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? 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 judgments, arbitral awards, settlements and public deeds in civil and commercial matters. Decisions in insolvency proceedings, decisions in inheritance and estate proceedings, decisions in guardianship and tutelage proceedings, interlocutory injunctions, 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 judicata. 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 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 proceedings from its scope ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

108 GASSER PARTNER Attorneys at Law Liechtenstein 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 arbitral 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). 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? The treaties with Austria and Switzerland as well as the New York Convention distinguish between recognition and enforcement. Recognition extends the legal effects of a foreign judgment to the recognising country, whereas enforcement denotes the execution of a judgment. 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. According to Art. 5 of the Treaty with Austria, the party seeking recognition of a judgment shall supply a counterpart of the judgment 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 confirmation 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 requirements. However, in addition to the above-mentioned documents, 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 arbitral award under the New York Convention, the party applying for recognition and enforcement shall, at the time of the application, supply the duly authenticated original award or a duly certified copy thereof and the original arbitral agreement or a duly certified copy thereof. 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? 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 Art. 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; 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 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? 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 acknowledgment. As regards the transfer of immovable property, the creditor may order the bailiff to evict the property and confer possession upon the creditor. 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. 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. 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 very recently. It has been applicable in Liechtenstein since October 5, 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 importantly, 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. Liechtenstein ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

109 GASSER PARTNER Attorneys at Law Liechtenstein Liechtenstein 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? 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 difficulties, additional costs and efforts required for the enforcement 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. Thomas Nigg GASSER PARTNER Attorneys at Law Wuhrstrasse Vaduz Liechtenstein Tel: thomas.nigg@gasserpartner.com URL: Domenik Vogt GASSER PARTNER Attorneys at Law Wuhrstrasse Vaduz Liechtenstein Tel: domenik.vogt@gasserpartner.com URL: Thomas Nigg is a lawyer admitted in and a citizen of Liechtenstein, 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 In 2007, he started his professional career as a lawyer in Liechtenstein and was admitted to the Liechtenstein Bar in In 2014, he became partner of the law firm Batliner Gasser Attorneys at Law (now: GASSER PARTNER Attorneys at Law). In 2016, he became senior partner of GASSER PARTNER Attorneys at Law. 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 matters. Further, he is coauthor of Litigation and Arbitration in Liechtenstein, the Liechtenstein chapter in The Asset Tracing and Recovery Review and has authored articles on various legal topics. Domenik Vogt is an 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 During his Master s degree, he spent a semester abroad at the University of Chicago in 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 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. 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

110 Chapter 20 Macedonia Tatjana Popovski Buloski Polenak Law Firm Aleksandar Dimic 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 The Law on International Private Law The Law on Enforcement The Law on International Trade Arbitration of the Republic of Macedonia New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of General Regime Relevant Jurisdiction(s) Corresponding Section Below All countries Section 2 All countries Section 2 All countries Section 2 All signatory countries of the New York Convention Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? The recognition of a foreign judgment in the Republic of Macedonia is regulated by the Law on International Private Law, and the enforcement of judgments, including a foreign judgment recognised by a Macedonian court, is regulated by the Law on Enforcement. In accordance with the Law on International Trade Arbitration of the Republic of Macedonia, the recognition of foreign arbitral awards is performed in accordance with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Foreign court judgments will be recognised by Macedonian courts if the following conditions are met: 1) the party has provided the original or duly verified copy of the award to be provided; 2) the award is confirmed as final by the relevant authority; 3) the judgment is confirmed as enforceable by the relevant authority; 4) there was no violation of due process in the foreign procedure against the opposing party; 5) there is no exclusive jurisdiction of a Macedonian court for the subject of the dispute; 6) there is no agreement between the parties that a Macedonian court be competent for solving the dispute; 7) there is no res judicata in the substantive case; and 8) the judgment is not contrary to Macedonian public order. In addition, to obtain the recognition and enforcement of a foreign arbitral judgment, the party applying for recognition and enforcement shall, at the time of the application, supply: a) The duly authenticated original award or a duly certified copy thereof. b) The original arbitrage 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 relied upon, the party applying for recognition and enforcement of the arbitral judgment shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? There is a difference between recognition and enforcement of judgment under Macedonian law. By way of recognition of a foreign judgment, the foreign judgment shall be considered as a judgment reached by Macedonian courts and it shall have legal effect in Macedonia as well. By way of enforcement of the foreign judgment recognised by Macedonian courts, the creditor collects its claim against the debtor as determined by the judgment. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

111 Polenak Law Firm Macedonia Macedonia The same refers to recognition of both foreign court judgments and foreign arbitral judgments. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. The procedure for recognition is as follows: 1) a proposal for recognition and determination of enforceability of the foreign judgment is to be filed with the competent Macedonian court (on the basis of residence of the opposing party) against the opposing party; 2) the court will examine ex officio whether the above conditions for recognition have been met and may schedule a hearing; 3) if the above conditions for recognition have been met, the court will make a decision on the recognition and determination of enforceability of the foreign judgment; 4) the court will send the decision to the opposing party; 5) the opposing party has the right to file an opposition against the decision within 15 calendar days from the day of receipt of the decision; 6) a council of three judges will decide upon the opposition of the opposing party. If the court finds that the decision on the opposition depends on certain disputable facts, then the court will decide upon a hearing; 7) the court will make a decision on the opposition; and 8) any unsatisfied party has the right to file an appeal within eight calendar days to the appellate court. parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or e) 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. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: a) the subject matter of the difference is not capable of settlement by arbitration under the law of that country; or b) the recognition or enforcement of the award would be contrary to the public order of that country. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Macedonian law does not provide a specific regime for enforcing foreign judgments relating to specific subject matters. 2.7 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? 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The recognition of a foreign judgment can be challenged in case of a lack of any of the conditions that must exist for a foreign judgment to be recognised in Macedonia, as explained above under question 2.2. The debtor may challenge the recognition by way of objection against the decision for recognition of a foreign judgment reached by the first instance court (please see question 2.4, 5) above) and by way of appeal against the decision reached by the council of three judges within the first instance court (please see question 2.4, 8) above). Furthermore, recognition and enforcement of the foreign arbitral judgment 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 recognition and enforcement is sought, proof that: a) 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 thereof, under the law of the country where the judgment was made; b) the party against whom the judgment 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; c) the judgment deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, 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; d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the If the Macedonian courts have reached a final judgment on the same matter as the matter decided with the foreign judgment, it will be considered that such matter is res judicata and the foreign judgment cannot be recognised in Macedonia. However, the local proceedings between the parties for the same matter shall not prevent the foreign judgment from being recognised in Macedonia, unless Macedonian law does not regulate the exclusive competence of Macedonian courts for such matter. 2.8 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? A foreign judgment that conflicts with imperative provisions of Macedonians law may not be recognised by Macedonian courts. In such case it may be considered that the recognition of such foreign judgment is contrary to Macedonian public order which is a legal obstacle for recognition of the foreign judgment. Existence of a prior judgment on the same or a similar issue, but between different parties, is not formally regulated as an obstacle for recognition of a foreign judgment. However, it cannot be excluded that a foreign judgment that is contrary to a prior judgment on the same or a similar issue, but between different parties, may be considered as contrary to Macedonian public order, which prevents recognition of a foreign judgment in Macedonia. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? No additional conditions are required for recognition and enforcement of a foreign judgment that purports to apply the law of our country except for the conditions mentioned in question 2.2 above. Thus, the court will determine if the conditions for recognition of a judgment ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

112 Polenak Law Firm Macedonia mentioned in question 2.2 above are met, including if the recognition of the judgment is contrary to Macedonian public order Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There are no differences in the rules and procedure of recognition and enforcement of a foreign judgment between the various regions in Macedonia What is the relevant limitation period to recognise and enforce a foreign judgment? Macedonian laws do not regulate the limitation period to recognise and enforce a foreign judgment. However, according to the Macedonian Law on Obligations, the limitation period for enforcement of claims that are determined with a final judgment is 10 years. Therefore, if the foreign final judgment has become final and enforceable and has been recognised by Macedonian courts more than 10 years prior to initiation of the procedure for enforcement, then, at the objection of the defendant party, it would be considered time-barred. 3 Special Enforcement Regimes Applicable to Judgments from Certain Countries 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? Please see the answer to question 2.5 above. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Once a foreign judgment or arbitral award is recognised, the creditor may initiate an enforcement procedure against the debtor for collection of the claim determined with the judgment. The enforcement procedure is regulated by the Law on Enforcement. The enforcement will be performed through the competent enforcement agents and the subject of enforcement may be the debtor s assets (funds on bank accounts, movables, immovable, shares, etc.) as well as the debtor s claims towards third parties. In case of bankruptcy of the debtor, the provisions of the Law on Enforcement would not apply, and enforcement of the judgment shall be performed on the basis of the Law on Bankruptcy. 5 Other Matters Macedonia 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? Please see the answer to question 2.2 above. 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? Please see the answer to question 2.3 above. 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. 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. There have not been any changes to the applicable laws relating to recognising and enforcing judgments in Macedonia in the last 12 months. 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? There are no particular issues that need to be flagged. Please see the answer to question 2.4 above. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

113 Polenak Law Firm Macedonia Tatjana Popovski Buloski Polenak Law Firm Orce Nikolov Skopje Macedonia Aleksandar Dimic Polenak Law Firm Orce Nikolov Skopje Macedonia Macedonia Tel: tpopovski@polenak.com URL: Ms. Tatjana Popovski Buloski is a founding partner of Polenak Law Firm. Her expertise covers M&A, project finance, antitrust and competition law, corporate law, litigation and arbitration, securities, energy, telecommunications, concessions and PPP, and employment. She has participated in many projects including major privatisations in the country, equity investments, project finance and major competition proceedings. Tatjana is the author of several publications amongst which are: Cartel Regulations 2017 and 2016, for Getting the Deal Through published by Law Business Research Ltd.; The Merger Control Review, seventh edition, 2016, Chapter for Macedonia, published by Law Business Research Ltd.; The Merger Control Review, fifth edition, 2015, Chapter for Macedonia, published by Law Business Research Ltd.; Co-Author for Dispute Resolution Chapter for Macedonia, 2012, 2013 and 2014 for Getting the Deal Through published by Law Business Research Ltd.; author for Business Law, number 29, 2013: What problems occurs in practice in application of the Law on Civil Procedure published by Association of Business Lawyers Skopje; author of the chapter for Macedonia in Anti-Bribery Risk Assessment Book, 2011, published by Verlag C. H. Beck ohg, Germany; author for Cartel Regulation, 2010 for Getting the Deal Through published by Law Business Research Ltd.; Author of the Overview of Macedonian Labor Law Issues in The International Practitioner s Desk book series of the International Bar Association, 2007; and is a contributor to several arbitration jurisdictional surveys and analyses. Tel: adimic@polenak.com URL: Mr. Aleksandar Dimic is a junior partner in Polenak Law Firm. In 2005, he spent part of his training with the Assembly of the Republic of Macedonia, Inquiry Committee for Protection of the Human Rights and Freedoms. Since the end of 2005, he has been working for Polenak Law Firm. He has been a junior partner since Aleksandar represents Polenak Law Firm s clients in several litigation procedures related to commercial and civil law. He is also part of the firm s team in many projects that are related to mergers and acquisitions, where he covers work related to civil and commercial law, litigation and ownership of assets. Polenak Law Firm is one of the leading law firms in the Republic of Macedonia. It is a full legal service law firm. The firm s practice encompasses major mergers and acquisitions involving local and international investors, competition and antitrust matters, legal due diligence reports, numerous commercial, civil and criminal litigations, financial transactions, loans and enforcements, employment issues, preparation and review of contracts, real estate transactions, share transfers and intellectual property ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

114 Chapter 21 Malaysia Rahmat Lim & Partners Jack Yow 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 Reciprocal Enforcement of Judgments Act 1958 ( REJA ) Maintenance Orders (Facilities for Enforcement) Act 1949 ( MOFEA ) Probate and Administration Act 1959 ( PBA ) 2 General Regime Relevant Jurisdiction(s) 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 Australia, Brunei, Ceylon, England, Bailiwick of the Island of Guernsey, Hong Kong, India, Island of Jersey, Isle of Man, New Zealand, Norfolk Island, Northern Ireland, Pakistan, Singapore, South Africa, and Wales Corresponding Section Below Sections 2, 3 and 5 Section 3 Commonwealth countries Section What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? The requirements that a foreign judgment must satisfy in order to be enforceable under REJA are as follows: (a) the judgment must be a monetary judgment; (b) the judgment must be a judgment of a superior court from a reciprocating country under REJA; and (c) 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. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 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. Recognition of a foreign judgment is an essential precursor to enforcement of such judgment, but does not necessarily mean that such judgment will be enforced in Malaysia. For example, a foreign judgment may be relied upon as establishing a set of facts for purposes 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 that 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). 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? The common law generally provides for the recognition and enforcement of a foreign judgment via initiation of a fresh suit in court to enforce such judgment. Foreign monetary judgments which fall within the ambit of REJA may, however, only be enforced via registration under REJA. In practice, registration under REJA appears to be the most common manner in which foreign monetary judgments are enforced in Malaysia. Insofar as common law enforcement of a non-reja foreign judgment is concerned, the procedure is as follows: An action on the 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 summary judgment, annexing a certified sealed copy of the foreign judgment. The court may grant summary judgment if no triable issue is raised by the defendant. Alternatively, an action on the judgment may be commenced by way of presentation of an originating summons with a supporting affidavit, to which is annexed a certified sealed ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

115 Rahmat Lim & Partners Malaysia Malaysia copy of the foreign judgment. At the hearing of the originating 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. Insofar as recognition and enforcement of a foreign judgment under REJA are concerned, the procedure is as follows: 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 judgment is not in English, a translation certified by a notary public must also be filed. The affidavit must comply with certain formalities listed under Order 67 rule 3 of the Rules of Court 2012 such as: 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, that the judgment has not been satisfied, that the judgment does not fall within any of the cases in which the judgment may not be ordered to be registered under REJA, that as at the date of the application the judgment may be enforced by execution in the country of the original court, and that 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 registration, and that execution on the judgment will not issue until the expiration of that period. Typically, the court will grant a period of between 14 to 21 days for such an application to be made. The order for leave to register must be served on the judgment debtor together with a notice of registration. The person serving the notice of registration must endorse the notice within three days after service, the day and date on which the notice was served. If an application to set aside the registration of the judgment is filed by the judgment debtor, the court will fix a hearing date for the application. In such an instance, execution on the judgment may not be levied until after such an application has been finally determined. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 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 on the other hand, the grounds upon which registration of a foreign judgment may be set aside are as follows: (a) the judgment is not a judgment to which Part II of REJA applies, or was registered in contravention of REJA; (b) the judgment is not a judgment of a superior court or a reciprocating country or was registered in contravention of REJA; (c) the court of the country or the original court had no jurisdiction in the circumstances of the case; (d) (e) (f) (g) the judgment debtor, being a defendant in the proceedings in the original court, did not receive notice of such proceedings in sufficient time to enable him to defend the proceedings and did not appear; the judgment was obtained by fraud; the enforcement of the judgment would be contrary to public policy; or the rights under the judgment are not vested in the person by whom the application for registration was made. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 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 countries 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 administration issued by a court of a Commonwealth country. 2.7 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? Conflicting local judgment between the parties relating to the same issue A local judgment between parties relating to the same issue would amount to a 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 parties If 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 proceedings, one of the parties is alleging that the foreign court lacked jurisdiction, that the judgment debtor had no notice of the original proceedings, or the judgment was obtained by fraud. 2.8 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? A conflicting local law, or prior judgment between different parties, would not by itself be a bar to enforcement of the foreign judgment under common law or under REJA. If, however, enforcement of the foreign judgment would by reason of such conflict be contrary to public policy of Malaysia, enforcement of the judgment will be refused (or, in the case of REJA, the registration of the foreign judgment will be liable to be set aside) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

116 Rahmat Lim & Partners Malaysia 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? The approach is no different from that applied to any other foreign judgment. The common law enforcement, or registration under REJA, of a foreign judgment may only be challenged on the grounds set out in question 2.5 above Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No, the rules and procedures outlined above apply throughout Malaysia. 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). PBA (a) A certified sealed copy 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 bond made by an administrator as a form of security. 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? Malaysia 2.11 What is the relevant limitation period to recognise and enforce a foreign judgment? Insofar as common law enforcement is concerned, the Limitation Act 1953 provides that an action upon any judgment may 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 may be recovered after the expiration 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 the 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. 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? REJA For a judgment to be registered under REJA, it must be a monetary 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 2.2 and 2.4 above. MOFEA (a) 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 wife 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 the Poor Relief (Ireland) Acts 1839 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 had been transmitted to the Minister charged with responsibility for the judiciary in Malaysia, who would have had to send the same There is no express provision specifying the distinction between recognition and enforcement under each specific regime. This distinction is implicit however, 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 enforcement of a judgment via a writ of seizure and sale would differ from the rules relating to garnishee proceedings. 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. REJA In registering a foreign judgment under the REJA, the applicant 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 original country. The documents must then be filed with the relevant High Court, which will then give the appropriate order. Upon registration of the judgment pursuant to an order of the High Court, the judgment is then recognised as a judgment of the High Court of Malaya or Sabah & Sarawak (as applicable). In order to issue 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 lapse of the period of time 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. MOFEA The 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 power to enforce the order. PBA Where 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

117 Rahmat Lim & Partners Malaysia Malaysia application for resealing of a grant of probate must be made by way of an originating summons supported by an affidavit sworn by the administrator or executor setting out therein, inter alia, the relationship of administrators to the deceased, particulars of the deceased, and a list of the deceased s liabilities and assets in Malaysia. The applicant must also furnish a certified sealed copy of the grant of probate or letter of administration. An administrator must also make a bond as a form of security. The court must thereafter hold a hearing within a month from the date of filing, 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. 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? 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? To enforce a monetary judgment, a judgment creditor may opt for one or more of the following enforcement methods: (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; or (e) initiation of bankruptcy or winding up proceedings. 5 Other Matters REJA Under section 5 of the 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 proceedings 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; or (f) the rights under the judgment are not vested in the person who applied for the registration of the judgment. 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. MOFEA There are no specific provisions allowing for 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. PBA An order on a petition 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. 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 inoperative under the lex domicilii). 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 Delta Design Decor LLC lwn. Pembinaan SPK Sdn Bhd [2015] 5 CLJ 509, the High Court of Malaya had the opportunity to rule on a procedural point in respect of common law enforcement of foreign judgments. The Court was of the view that if there were no disputes of fact, an action at common law for enforcement of a foreign judgment could be commenced by way of an originating summons instead of filing a writ of action. 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? 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 judgment under common law is required. Next is the issue of when to apply for enforcement. 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 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) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

118 Rahmat Lim & Partners Malaysia Jack Yow Rahmat Lim & Partners Suite Level 33 The Gardens North Tower Mid Valley City, Lingkaran Syed Putra Kuala Lumpur Malaysia Tel: URL: Jack heads the Litigation practice at Rahmat Lim & Partners. His areas of practice include corporate and banking litigation, 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 arbitration award for a Malaysian subsidiary of a public listed German company in a multi-million USD contractual dispute; acting in a judicial review application and obtaining a declaration and an order of mandamus compelling a local authority to issue a certificate of fitness and occupation in a shopping mall; acting on behalf of a multinational company in the successful suit of its former chief executive officer for negligence and breach of directors duties; advising receivers and managers of companies in receivership; as well as acting for liquidators in insolvency proceedings. Malaysia Rahmat Lim & Partners is an award-winning, full-service law firm in Malaysia which is dedicated to the provision of high-quality legal services. With our extensive experience and premier client base, our Partners and practices have been consistently recognised and ranked as leaders in the market and have won various awards since our Firm was established in We are, first and foremost, a Malaysian law firm, but take pride in having a distinctive global approach and perspective, and aim to provide effective domestic and cross-border solutions for our local and international clients. Our lawyers have advised on many of the nation s largest and most high-profile transactions, and offer quality services to clients requiring representation across a wide range of contentious and non-contentious matters. Our Banking and Finance, Capital Markets, Dispute Resolution, Intellectual Property & Technology, Mergers and Acquisitions, and Corporate Real Estate practices are all ranked in international and regional legal publications such as Chambers Global/Asia-Pacific and The Legal 500 Asia Pacific. Whilst our lawyers are drawn from diverse backgrounds, Rahmat Lim & Partners stands firmly on the principles of integrity, excellence and professionalism. These core values form the foundation of our culture, and enable us to act as trusted legal advisors to our clients. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

119 Chapter 22 Netherlands Eversheds Sutherland Jurjen de Korte 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 Direct effect of judgments within the Kingdom of the Netherlands: art. 40 Statute. If no treaty applies: art. 431 Dutch Code of Civil Procedure. If a treaty applies: specific treaty regime and/or arts of the Dutch Code of Civil Procedure. 2 General Regime Relevant Jurisdiction(s) Aruba, Curaçao, Sint Maarten. All jurisdictions where no treaty applies. Bilateral treaties with Belgium (1925), Italy (1959), Germany (1962), Austria (1963), United Kingdom (1967), and Suriname (1976). Albania, Cyprus, Kuwait, Portugal (1971 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters). EU Member States, Mexico and Singapore (2005 Hague Convention on Choice of Court Agreements). Multiple treaties with relatively narrow scope (e.g. child support, transport by air, by road, by rail). Corresponding Section Below N/A Section 2 Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? If no treaty applies, the recognition and enforcement of a foreign court judgment is governed by art. 431 of the Dutch Code of Civil Procedure. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? 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. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? If the foreign judgment concerns the establishment of a certain status (e.g. divorce) it is sufficient to seek recognition of that status and not necessary to also seek court leave to enforce in the Netherlands. However, if the foreign judgment concerns an order to perform a certain act (e.g. make a payment, transfer title) then one should not only seek recognition of the foreign judgment but also seek from the Dutch courts a leave to enforce. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Even though the procedure of art. 431 of the Dutch Code of Civil Procedure (i.e. absent an applicable treaty) does not formally entail recognition or enforcement of a foreign state court judgment, it does in effect result in giving binding effect in the Netherlands to a foreign court judgment. 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 first instance. The proceedings are initiated by summons (dagvaardingsprocedure) and are inter partes and the outcome is subject to appeal and cassation. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Recognition and enforcement may be refused if (i) the foreign judgment is not based on an internationally recognised ground for jurisdiction, (ii) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

120 Eversheds Sutherland Netherlands 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 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 recognisable 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. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Under the regime of art. 431 of the Dutch Code of Civil Procedure (i.e. absent an applicable treaty) there are no additional requirements 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, shipping, transport by road, by air and by rail). Significant differences may apply depending on the applicable treaty Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No, there are not What is the relevant limitation period to recognise and enforce a foreign judgment? In the 2014 Gazprombank 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 recognition and enforcement in the Netherlands of that foreign judgment. In other words, the foreign statute of limitations is of no consequence for the recognition and enforcement in the Netherlands of a foreign judgment. That decision has raised the question 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. 3 Special Enforcement Regimes Applicable to Judgments from Certain Countries Netherlands 2.7 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? That is a ground for refusal (see under question 2.5 (iv)). That may be a ground to suspend the proceedings pending the outcome of the local proceedings. 2.8 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? Recognition and enforcement of a foreign judgment may be refused if that would violate Dutch public order. Certainly not every conflict with Dutch laws and regulations or with an earlier judgment between other parties amounts to a potential violation of Dutch public order. If the foreign judgment 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. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? The 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. 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? Please note that the answers in this section do not necessarily apply under EU Regulations and the Lugano Treaty. The request should be accompanied by a complete and authenticated 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 treaties 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 counterparty was properly notified of the request to recognise and enforce the foreign judgment. 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? Even though arts of the Dutch Code of Civil Procedure formally only applies to treaty-based requests for enforcement of a foreign judgment, it is generally held that these provisions should also be followed for a treaty-based request to recognise a foreign judgment. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

121 Eversheds Sutherland Netherlands Netherlands 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. The request should be filed at the District Court. The proceedings are inter partes. The decision of the District Court is subject to appeal (within one month, unless an exception applies). The decision of the Court of Appeal in 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. 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 monetary penalty (dwangsom). In extreme circumstances, a person may be imprisoned as long as the judgment is not satisfied (lijfsdwang). 5 Other Matters 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? 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 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 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 formulate additional grounds 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 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? 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 available actions include collection of receivables (e.g. trade receivables, 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 or awards? Please provide a brief description. In the Gazprombank decision of 26 September 2014, the Dutch Supreme Court for the first time formulated a comprehensive set of criteria for recognition and enforcement of a foreign judgment if no treaty applies. This constitutes a major development since the Supreme Court decisions in Bontmantel (1925) and Esmil (1993) and is a long overdue interpretation of art. 431 of the Dutch Code of Civil Procedure (that has been in existence since 1838). On 1 October 2015, the 30 June 2005 Hague Convention on Choice of Court Agreements entered into force between the Netherlands and other EU Member States and Mexico. It entered into force for Singapore on 1 October 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 or award in your jurisdiction? 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) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

122 Eversheds Sutherland Netherlands Jurjen de Korte Eversheds Sutherland De Cuserstraat 85a 1081 CN Amsterdam The Netherlands Tel: URL: Jurjen de Korte is the lead partner of the contentious practice at Eversheds Sutherland in the Netherlands. He joined Eversheds Sutherland in December Previously, Jurjen worked at the Amsterdam office of Stibbe and the Abu Dhabi office of Herbert Smith Freehills. Jurjen graduated in Dutch law at the Utrecht University (1998) and completed a Master of Laws degree at New York University (1999). He is admitted to the Dutch Bar (1999), New York State Bar (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. He regularly acts on matters involving the international recognition and enforcement of court judgments and arbitral awards and on attachments to secure performance of the outcome of foreign proceedings. Jurjen has handled disputes in a wide range of sectors, including construction, transport, oil & gas, M&A and banking & finance. He frequently publishes and lectures in the field of international arbitration and private international law. His memberships include the Dutch Arbitration Association, the Corporate Litigation Association, the Dutch Civil Procedure Association and the American Bar Association. At Eversheds Sutherland he is a member of the International Arbitration Group (IAG) and the Financial Services Disputes and Investigations (FSDI) group and a member of the Russia and CIS team. Jurjen is listed in Chambers Global, Chambers Europe and The Legal 500. Netherlands Eversheds Sutherland is one of the world s leading international law firms. With a footprint covering Europe, the U.S., Middle East, Africa and Asia and strong links with best friend firms across the globe Eversheds Sutherland provides its clients with an unsurpassed coverage of their legal needs wherever and whenever they arise. Quality and legal, commercial and cultural knowledge, supported by the resources and back-up of an international law firm. Recognised by Acritas as a Global Elite Law Firm, we regularly advise on billion-dollar deals and high-profile cases on behalf of the world s most powerful corporations and financial institutions. In an era of increasing globalisation, we are unique in our multi-jurisdictional project management approach and commitment to seamless service delivery across our 60+ offices. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

123 Chapter 23 Nigeria Abimbola Akeredolu Banwo & Ighodalo Chinedum Umeche 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/ Relevant Jurisdiction(s) Statutory Regime Enforcement by registration The Reciprocal Enforcement of Foreign Judgments Ordinance, This is contained in Cap. 175, Laws of the Federation of Nigeria and Lagos, 1958 ( the Ordinance ) The Foreign Judgment (Reciprocal Enforcement) Act, Cap. F35, Laws of the Federation of Nigeria, 2004 ( the Act ) The Ordinance applies to judgments of courts of England, Ireland and Scotland; and by proclamation (made pursuant to section 5 of the Ordinance) was extended to judgments from courts of the Gold Coast Colony and the Colony and Protectorate of Sierra Leone, the Colony of Gambia, Barbados, Bermuda, British Guiana, Gibraltar, Grenada, Jamaica, Leeward Islands, Newfoundland, New South Wales, St. Lucia, St. Vincent, Trinidad and Tobago and Victoria. The Act applies to judgments of the courts of commonwealth countries and other foreign countries. Under Section 3(1) of the Act, the Nigerian Minister of Justice has the power to make an Order extending the application of the Act to any foreign country with substantial reciprocity of treatment with respect to the enforcement of foreign judgment. However, the Act is yet to be made applicable to any specific foreign country because the Minister of Justice has not issued the said Order. Section 9 (1) of the Act preserves the applicability of the Ordinance to jurisdictions listed in the box above pending the making of an Order by the Minister extending the application of the Act to such jurisdictions. Hence, Section 9 (2) of the Act provides that the Ordinance will cease to have effect where an Order is made by the Minister extending the application to those jurisdictions. Corresponding Section Below Section 2 Section 2 Applicable Law/ Statutory Regime Relevant Jurisdiction(s) Corresponding Section Below Enforcement by a fresh action under common law At common law, a foreign judgment constitutes a debt giving rise to a fresh cause of action in Common law favour of the judgment creditor. This position is still applicable in Nigeria until there is any statutory abolition/modification. Section 2 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? Where the statutory provisions of the Ordinance or Act as explained in paragraph 1.1 are not applicable, the applicable default option is the common law remedy. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Under the Ordinance, the following requirements must be satisfied: a) the application for registration and enforcement of the judgment must be filed within 12 months after the date of the judgment or such longer periods as may be allowed by the courts; b) the original courts must have acted within its jurisdiction. c) the judgment debtor must have voluntarily appeared or otherwise submitted or agreed to submit to the jurisdiction of the English courts, for example; d) the judgment debtor must have been duly served with the court process leading up to the judgment; e) the judgment was not obtained by fraud; f) there is no appeal pending or the judgment debtor is not entitled to appeal and if entitled, has not shown any intention of appealing; and g) the judgment is not in respect of a cause of action which, for reasons of public policy or for some other similar reasons, the courts would have refused to entertain. A foreign judgment given after the coming into operation of the Order made by the Minister under section 3 of the Act will be ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

124 Banwo & Ighodalo Nigeria registered where it is final and conclusive between the parties; and where the judgment sum is not in respect of taxes or other charges of like nature, or in respect of a fine or other penalty. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Yes. Recognition of a foreign judgment occurs where a court accepts a judicial decision made by a court in another country. Once the judgment is recognised, only then can it be enforced through one of the legally acceptable means of enforcement e.g. garnishee proceedings. A judgment can also be recognised but not enforced, for example, where a party raises the defence of res judicata in an attempt by an adverse party to re-litigate the same issues from a foreign action in a domestic court. In such circumstances, the court may be called upon to recognise the judgment but not to enforce it. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Under the Ordinance, the applicant is required to apply to the High Court for leave to register the foreign judgment by a Petition. A Petition may be brought ex parte or on notice. If the applicant files a Petition ex parte, the judge may direct that notice of the application be served on the judgment debtor. The Petition should be supported by an affidavit of facts exhibiting the judgment or a verified or certified, or otherwise duly authenticated copy. The affidavit must also, so far as the deponent can, give the full name, title, trade or business and usual or last known place of abode or business of the judgment creditor and judgment debtor respectively. Where leave is granted, the order should be served on the judgment debtor. The order should specify the time limit within which the judgment debtor can apply to set aside the registration. Upon successful registration, and in the absence of an application to set aside the registration, the judgment creditor may take steps to enforce the judgment by activating any of the judgment enforcement mechanisms, e.g. garnishee proceedings. The foreign judgment sought to be enforced must be a money judgment. As such, judgments of non-monetary nature, such as declarations regarding an existing state of affairs and or injunctions, are not registrable. At common law, the judgment creditor is to file a Writ of Summons and: (i) apply that the Writ of Summons be placed on the undefended list; or (ii) file a summary judgment application together with the Writ of Summons. The justification for either approach is that the judgment debtor having been adjudged liable for the claimed sum, has no defence to the claims. Finally, the Act provides a broad framework for the registration of foreign judgments. Thus, section 4 (1) permits a judgment creditor to apply to a superior court in Nigeria for the registration of a foreign judgment. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Depending on the applicable regime, the recognition/enforcement of a judgment can be challenged on any of the following grounds: a) where the foreign court had no jurisdiction to hear/determine the case; b) if the judgment was obtained by fraud; c) if the judgment is contrary to public policy; d) the judgment debtor satisfies the registering court that there is a pending appeal against the judgment; e) the judgment debtor was not served with the court process of the original court, and did not appear in the proceedings; f) if the judgment was wholly satisfied at the time of seeking recognition and enforcement; g) that the rights under the judgment are not vested in the person by whom the application for registration was made; and h) the judgment could not be enforced by execution in the original court. The challenge should be raised immediately once the judgment debtor is served with the court processes seeking to register and enforce the judgment or such other time as the court may permit. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? The Constitution vests jurisdiction regarding specific subject matters in different courts. There is an unsettled debate as to whether foreign judgments which relate to specific subject matters can only be registered and enforced in the court with exclusive jurisdiction to determine the matters. For example, Section 251 (1) of the Constitution vests exclusive jurisdiction in the Federal High Court on a number of subject matters including (without limitation) customs and excise, oil and gas, revenue of the Federal Government, and banking (excluding banker-customer relationships). In the case of Access Bank Plc vs Akingbola (Unreported, Suit No M/563/2013, delivered on 18 th February 2014), the Lagos State High Court refused to enforce a foreign judgment on the ground that the subject matter of the underlying dispute fell under the exclusive jurisdiction of the Federal High Court as stipulated by Section 251 (1) (e) of the Constitution. This matter is now on appeal and the debate therefore remains unsettled. Also, Section 20 of the Admiralty Jurisdiction Act (the AJA ) potentially renders void any foreign jurisdiction clause contained in a contract in respect of admiralty matters. The AJA is not clear on whether a foreign judgment on an admiralty subject matter is enforceable in Nigeria. Although there is no case law to clarify the position yet, there is a possibility that a Nigerian court may refuse to enforce a foreign judgment on an admiralty subject matter, especially if the case should have been litigated in Nigeria in the first place. 2.7 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? Where there is a conflicting local judgment between the parties relating to the same issue, the local judgment will take precedence and the court will not enforce the foreign judgment. Where local proceedings are pending between the parties as well as a foreign judgment involving the same parties, the question will be whether, and to what extent, there is an abuse of court process by the parties. If the proceedings leading up to the foreign judgment were validly commenced prior to the institution of the local proceedings, and there are no vitiating elements capable of affecting the registration and enforcement of the judgment, it appears that the local proceedings may be considered to be an abuse of court process. Nigeria ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

125 Banwo & Ighodalo Nigeria Nigeria 2.8 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? Where a foreign judgment is in conflict with the local laws of Nigeria, the court is not likely to register and enforce the judgment. Public policy can be relied upon to refuse recognition and enforcement of a foreign judgment that directly conflicts with the provisions of local laws. On the contrary, where there is a prior judgment on the same or similar issue between different parties, the judgment will still be enforced, notwithstanding the prior judgment. This is because under Nigerian law, a judgment only binds the parties to the proceedings. c) the RES (subject matter) must be situated in the foreign country (i.e. the country that gave judgment) as at the time of delivery of the judgment; d) the application to enforce the foreign judgment must be made within 12 months (under the Ordinance) or six years (under the Act) from the date of delivery of the judgment; e) the judgment must not have been obtained by fraud; and f) the judgment must not be contrary to public policy. 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? 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? Where a foreign judgment purports to apply the laws of Nigeria, the court will recognise and enforce the foreign judgment, provided that it satisfies the requirements for recognition and enforcement under Nigerian law Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. Nigeria is a federation of 36 States. Legislative powers are shared between the Federal and State governments. Recognition and enforcement of judgments is governed by federal legislation which applies throughout the country. However, in respect of enforcement under the common law, the Civil Procedure Rules of the court in which the action is brought will apply and the provisions of such court rules vary from State to State (although with striking similarities) What is the relevant limitation period to recognise and enforce a foreign judgment? Under the Ordinance/Act, recognition is by the statute (once the judgment falls under the type of judgments recognised by the Ordinance/Act). Thus, an application is made merely to register and enforce the judgment. On the other hand, a party seeking to enforce a foreign judgment under the common law is to institute a fresh action and plead the judgment in his pleadings. It therefore means that there is no statutory recognition under the common law regime. 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. At common law, the party seeking to rely on a foreign judgment must institute a fresh action to in order to enforce the foreign judgment in Nigeria. To save time and where the claimant strongly believes his claim cannot be contested, the claimant s best option will be to institute the fresh action by means of the undefended list procedure or summary judgment procedure, where a judicial decision can be made without plenary trial. However, an action instituted under the undefended list or summary judgment procedure may be defended by a defendant if he shows good grounds. Under the Ordinance/Act, the procedure for recognition and enforcement is by filing an originating application (i.e. Petition), supported by a verifying affidavit (with a copy of the judgment among other documents attached as exhibits). At common law, the limitation period is usually 10 to 12 years from the date of delivery of the judgment, depending on the State in question. Under the Ordinance, the limitation period is 12 months, while under the Act the limitation period is six years. 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 requirements of recognition and enforcement of a foreign judgment are: a) the foreign judgment must be: (i) final and conclusive; and (ii) must have been given by a superior court of competent jurisdiction; b) it must be a judgment for a definite sum of money. It cannot be a tax, penalty or fine; 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? Recognition/enforcement of foreign judgments can be challenged on the following grounds: a) where the foreign court had no jurisdiction; b) if the judgment was obtained by fraud; c) if the judgment is contrary to public policy; d) if the matter was originally res judicata; and e) under the Ordinance/Act, if there is no reciprocal arrangement with the country from where the judgment was obtained. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Once a foreign judgment has been recognised, the enforcement ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

126 Banwo & Ighodalo Nigeria methods available to the judgment creditor will include the following: (a) writ of sequestration; (b) writ of FiFa; (c) garnishee proceedings; and (d) judgment summons. 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. There have not been any noteworthy legal developments in this jurisdiction in the last 12 months. The decisions of the High Courts which have generated controversial debates on this subject in the recent past are currently on appeal. The aforementioned decision is briefly explained below: In the case of Access Bank Plc vs Akingbola (Unreported, Suit No M/563/2013, delivered on 18 th February 2014), the Lagos State High Court refused to enforce a foreign judgment on the ground that the subject matter of the underlying dispute fell under the exclusive jurisdiction of the Federal High Court under Section 251 (1) (e) of the Constitution. When another application was subsequently filed at the Federal High Court for enforcement of the same judgment, in Suit No FHC/L//CP/469/2014: Access Bank Plc vs Akingbola (Unreported, delivered on 17 th November 2014), the Federal High Court refused to enforce the judgment on the ground that the court in England from where the judgment was obtained had refused the judgment debtor s application for leave to appeal; whereas the subject matter of the dispute falls under the matters in which the Constitution stipulates a right of appeal by right (and did not require leave). For a discussion on the decision of the State High Court, see, for example, Pontian N. Okoli, Subject matter jurisdiction: the recognition and enforcement of English judgments in Nigeria and the need for a universal standpoint, Yearbook of Private International Law, Vol 17 (2015/ ). 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? A client who intends to enforce a foreign judgment in Nigeria should specifically seek legal advice in respect of: (i) the relevant legal regime (the Ordinance, the Act or common law) which is applicable to the particular judgment sought to be enforced; (ii) the court which is vested with jurisdiction to determine the subject matter (if any), as this may impact on the choice of court to approach for enforcement; and (iii) the right of appeal of the judgment debtor (if any), as this may impact on the issue of finality. Also, such clients are advised to ensure that the application for enforcement is filed within 12 months of the date of delivery of the judgment. Nigeria ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

127 Banwo & Ighodalo Nigeria Abimbola Akeredolu Banwo & Ighodalo 98 Awolowo Road SW Ikoyi, Lagos Nigeria Chinedum Umeche Banwo & Ighodalo 98 Awolowo Road SW Ikoyi, Lagos Nigeria Nigeria Tel: / aakeredolu@banwo-ighodalo.com URL: Abimbola is a target-driven and goal-oriented lawyer. She joined the firm in September Her resolute commitment to the best interests of her clients in transactions and in the course of litigation and negotiation of settlements, and the inevitable attendant success is an attribute for which she is often commended. She is quite renowned for her vast experience in commercial litigation and arbitration. Her multilingual skills (English, French, Italian and German) make her a lawyer with a difference. In 2013, she was appointed as Attorney General and Commissioner for Justice, Ogun State, the first female to be appointed to that office. In 2015, she was conferred with the prestigious rank of Senior Advocate of Nigeria. Tel: / cumeche@banwo-ighodalo.com URL: Chinedum has consistently demonstrated a passion for law practice. His exceptional understanding of legal issues reflects in his output in and out of court. A passionate writer and thinker, his articles on a wide range of legal issues have been published in reputable international and local law journals. Chinedum is a Notary Public for the Federal Republic of Nigeria. Banwo & Ighodalo ( B&I ) was established on the 1 st February, 1991 with the resolve to create a world class law firm. Today, we are known for providing innovative, competent, cost-effective and well-timed solutions. Our firm is an eleven (11)-man Partnership with more than forty (40) other lawyers. We undertake work for public and private companies, governments, Nigerian and foreign investors, financial institutions, foreign law firms and international consultancy firms. Our lawyers are often called upon to serve as resource persons at local and international seminars/workshops and as public and private sector office holders and advisers. Our Practice We are consistently ranked as a leading Nigerian law firm in the areas of Capital Markets, Securities, Mergers & Acquisitions and one of the top five law firms in Corporate Finance & Restructuring, Project Finance, Foreign Investment & Divestment, Shipping, Aviation & International Trade, Energy & Natural Resources and Intellectual Property. We also have a tested and dependable track record in Commercial Litigation ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

128 Chapter 24 Philippines Jess Raymund M. Lopez Gatmaytan Yap Patacsil Gutierrez & Protacio Vladi Miguel S. Lazaro 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(s) Corresponding Section Below Not Applicable Not Applicable Not Applicable 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? In Philippine Aluminum Wheels, Inc. v. FASGI Enterprises, Inc. (G.R. No , 12 October 2000), the Philippine Supreme Court (the Supreme Court ) declared that in the absence of a special compact, no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country; however, the rules of comity, utility and convenience of nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries. In this regard, although the Philippines is not a party to any treaty or convention dealing with the recognition and enforcement of foreign judgments, Philippine law nevertheless provides a framework which allows domestic courts to recognise and enforce the final judgments or orders of foreign courts in the Philippines. In particular, Rule 39, Section 48 of the Philippine Rules of Court ( Rules ) provides that a judgment or final order of a foreign court having jurisdiction to render the judgment or final order shall have the following effects: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing. (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. (c) In either case, however, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party resisting recognition/enforcement, collusion, fraud, or clear mistake of law or fact. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? The substantive requirements which a foreign judgment must satisfy in order that it may be recognised and enforced in the Philippines are as follows: (a) It must be a final judgment or order, and not an interlocutory one. (b) It must have been rendered by a court with jurisdiction over the subject matter of the dispute, and over the parties. In relation to this, Philippine law presumes, in the absence of evidence to the contrary, that a court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of its jurisdiction. Moreover, the Supreme Court has ruled that matters of procedure, such as those relating to the service of summons or court process upon the defendant, are governed by the lex fori, or the internal law of the forum. (c) The basic requirements of due process (i.e., notice and an opportunity to be heard by an impartial tribunal) must have been observed by the foreign court. (d) The judgment must not be contrary to morals or Philippine public policy. In turn, in Asiavest Merchant Bankers (M) Berhad v. Court of Appeals (G.R. No , 20 July 2001), the Supreme Court ruled that the formal requirements for a foreign court decision are to be determined by reference to the lex fori (i.e., the law of Malaysia in that case), and not the law of the Philippines (where recognition and enforcement proceedings were filed). 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Recognition and enforcement of foreign judgments are distinct concepts under Philippine law. In Hang Lung Bank, Ltd. v. Saulog (G.R. No , 26 August 1991), the Supreme Court explained that enforcement entails a domestic court granting affirmative relief in accordance with the terms of a foreign judgment. Recognition, however, does not necessarily include enforcement in cases where no affirmative relief is sought from Philippine courts on the basis of a foreign judgment. Thus, a party may seek the recognition of a foreign judgment without also seeking its enforcement in cases where the foreign judgment is relied upon for the purpose of invoking res judicata as a defence to another ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

129 Gatmaytan Yap Patacsil Gutierrez & Protacio Philippines Philippines action filed in the Philippines involving the same facts, parties, and causes of action as the dispute which occasioned the foreign judgment. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. A party seeking the enforcement of a foreign judgment in the Philippines must file a civil action with the regular courts. In Mijares v. Ranada (G.R. No , 12 April 2005), the Supreme Court explained that a civil action is one by which a party sues another for the enforcement or protection of a right, and clearly an action to enforce a foreign judgment is in essence a vindication of a right prescinding either from a conclusive judgment upon title or the presumptive evidence of a right. The Supreme Court further declared that absent a statutory grant of jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must be brought before the regular courts. The Supreme Court likewise stated in Mijares that it is the Philippine Regional Trial Courts which have jurisdiction over actions seeking the enforcement of foreign judgments. As mentioned above, Philippine law provides for a disputable presumption that a court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction. Consistent with this presumption, the Rules state that in pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. The party seeking enforcement must also prove the foreign judgment as a fact in accordance with the Rules. As explained by the Supreme Court in Fujiki v. Marinay (G.R. No , 26 June 2013), this may be done through (a) an official publication, or (b) a certification or copy attested by the officer who has custody of the judgment. If the office in which the foreign judgment is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in that country, and authenticated by the seal of his office. In contrast, in Philsec Investment Corporation v. Court of Appeals (G.R. No , 19 June 1997), the Supreme Court ruled that a party seeking the recognition of a foreign judgment (as basis for the defence of res judicata) need not initiate a separate action or proceeding for this purpose. Instead, the Supreme Court declared that the effect of res judicata may be given to foreign judgments for as long as the parties opposed to the judgment [have] been given ample opportunity to repel them on grounds allowed under the law. The Supreme Court added that what is essential is that there is [an] opportunity to challenge the foreign judgment, in order for the court to properly determine its efficacy. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The Rules provide that a judgment or final order of a foreign court may be challenged or repelled on the following grounds: (a) want of jurisdiction; (b) want of notice to the party; (c) collusion; (d) fraud; and/or (e) clear mistake of law or fact. In addition, a foreign judgment may be refused recognition/enforcement on the ground that the judgment is contrary to Philippine public policy. A challenge to the recognition/enforcement of a foreign judgment may be made during the proceedings filed by a party seeking the recognition/enforcement of a foreign judgment, and after that party has proven the foreign judgment as a fact in accordance with the Rules. It is important to note, however, that the Philippines adheres to the so-called policy of preclusion, which limits the permissible scope of judicial review of foreign judgments to only those matters specified above. As the Supreme Court explained in Mijares v. Ranada (supra) this policy of preclusion seeks to protect party expectations resulting from previous litigation, to safeguard against the harassment of defendants, to insure that the task of courts not be increased by neverending litigation of the same disputes, and in a larger sense to promote what Lord Coke in the Ferrer s Case of 1599 stated to be the goal of all law: rest and quietness. The Supreme Court added that if every judgment of a foreign court were reviewable on the merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the previously concluded litigation. Similarly, in Fujiki v. Marinay (supra), the Supreme Court declared that: Philippine courts exercise limited review on foreign judgments. Courts are not allowed to delve into the merits of a foreign judgment. Once a foreign judgment is admitted and proven in a Philippine court, it can only be repelled on grounds external to its merits, i.e., want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. The rule on limited review embodies the policy of efficiency and the protection of party expectations, as well as respecting the jurisdiction of other states. (a) Want of Jurisdiction A foreign judgment may be refused recognition/enforcement when it is established that it was rendered by a court without jurisdiction over the subject matter of the dispute and/or the person of the defendant. In Asiavest Limited v. Court of Appeals (G.R. No , 25 September 1998) a judgment issued by the High Court of Hong Kong was refused recognition and enforcement on the ground that the defendant was not validly served with summons, and thus, the foreign court did not acquire jurisdiction over the person of the defendant. (b) Want of Notice to the Party A foreign judgment may be refused recognition/enforcement if a party was not given a reasonable opportunity to be heard (i.e., to present claims or defences) in the proceedings before the foreign court. (c) Collusion Collusion has been defined as a secret understanding whereby one party plays into another s hands for fraudulent purposes. (d) Fraud The type of fraud that would bar the recognition or enforcement of a foreign judgment is extrinsic fraud, as opposed to intrinsic fraud. In Philippine Aluminum Wheels, Inc. v. FASGI Enterprises, Inc. (supra), the Supreme Court explained that fraud, to hinder the enforcement within this jurisdiction of a foreign judgment, must be extrinsic, i.e., fraud based on facts not controverted or resolved in the case where judgment is rendered, or that which would go to the jurisdiction of the court or would deprive the party against whom judgment is rendered a chance to defend the action to which he has a meritorious case or defense. The Supreme Court further ruled that intrinsic fraud, which refers to fraud which goes to the very existence of the cause of action such as fraud in obtaining the consent to a contract, is deemed already adjudged and does not bar the recognition or enforcement of a foreign judgment. (e) Clear Mistake of Law or Fact Despite the policy of preclusion, foreign judgments have been refused recognition and enforcement on the ground that the judgment was issued on the basis of a clear mistake of law or fact ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

130 Gatmaytan Yap Patacsil Gutierrez & Protacio Philippines To illustrate, in Nagarmull v. Binalbagan-Isabela Sugar Co., Inc. (G.R. No. L-22470, 28 May 1970), the Supreme Court refused to recognise a judgment of India s High Court of Judicature of Calcutta because it makes appellant an innocent party [i.e., a Philippine company] suffer the consequences of the default or breach of contract committed by appellee [i.e., a company based in India]. In this case, an Indian company failed to deliver goods within the period specified in a contract. The Philippine company demanded the delivery of the goods. When the goods were delivered, however, India had already increased its export tax. The Indian company demanded that the Philippine company pay the additional cost resulting from the increase in export tax. The Indian court ruled that the Philippine company was liable to pay for the additional costs. The Supreme Court refused to recognise and enforce the Indian court s judgment because it fail[ed] to apply to the facts of this case fundamental principles of contract, and was therefore based on a clear mistake of law. In the recent case of Bank of the Philippine Islands Securities Corporation v. Guevara (G.R. No , 11 March 2015), however, the Supreme Court declared that a Philippine court will not substitute its own interpretation of any provision of the law or rules of procedure of another country, nor review and pronounce its own judgment on the sufficiency of evidence presented before a competent court of another jurisdiction. There is currently no clear test for determining when or under what conditions a mistake of law or fact would constitute a clear mistake, which would bar the recognition and/or enforcement of a foreign judgment by Philippine courts. (f) Contrary to Philippine Public Policy A foreign judgment will not be recognised/enforced by Philippine courts if it is contrary to morals or Philippine public policy. As explained by the Supreme Court in Mijares v. Ranada (supra): The viability of the public policy defense against the enforcement of a foreign judgment has been recognized in this jurisdiction. This defense allows for the application of local standards in reviewing the foreign judgment, especially when such judgment creates only a presumptive right, as it does in cases wherein the judgment is against a person. The defense is also recognized within the international sphere, as many civil law nations adhere to a broad public policy exception which may result in a denial of recognition when the foreign court, in the light of the choice-of-law rules of the recognizing court, applied the wrong law to the case. The public policy defense can safeguard against possible abuses to the easy resort to offshore litigation if it can be demonstrated that the original claim is noxious to our constitutional values. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Philippine law provides for different procedures for recognising divorce and foreign probate decrees. Divorce Decree Philippine law does not recognise divorce between Filipino citizens. However, Article 26 of Executive Order No. 209, otherwise known as the Family Code of the Philippines (the Family Code ), allows for the recognition of a foreign divorce decree between a Filipino citizen and a foreigner which vests both individuals with the capacity to remarry. In this regard, Article 26 of the Family Code provides that where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. In addition to proving the foreign divorce decree as a fact in accordance with the Rules, a party seeking the recognition of a divorce decree obtained abroad must further prove that the divorce decree is valid according to the national law of the foreigner spouse. Thus, in Medina v. Koike (G.R. No , 27 July 2016), the Supreme Court ruled that in order for a divorce obtained abroad by the alien spouse to be recognized in our jurisdiction, it must be shown that the divorce decree is valid according to the national law of the foreigner. Both the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Since our courts do not take judicial notice of foreign laws and judgment, our law on evidence requires that both the divorce decree and the national law of the alien must be alleged and proven like any other fact. In relation to this, foreign law may be proved in the same manner as foreign judgments. In addition, in Asiavest Limited v. Court of Appeals (supra), the Supreme Court declared that foreign law may also be proved through the testimony of an expert witness. Foreign Probate Decree A will executed abroad and probated in the country where the will was executed may be recognised in the Philippines subject to reprobate proceedings. In reprobate proceedings, the following must be proven: (a) the due execution of the will in accordance with foreign laws; (b) the fact of the testator s domicile in the foreign country; (c) the will s admission to probate in the foreign country; (d) the fact that the foreign tribunal is a probate court; and (e) the laws of a foreign country on procedure and allowance of wills. In reprobate proceedings, authenticated copies of the will and the decree of allowance must be submitted to the Philippine court. The Philippine court then causes the publication of a notice announcing the time and place of the reprobate hearing. If the Philippine court determines that the will should be allowed in the Philippines, the court will issue a certificate of allowance to be attached to the will. The will shall then have the same effect as if it were originally proved and allowed before a Philippine court. Insolvency A.M. No SC, otherwise known as the Financial Rehabilitation Rules of Procedure promulgated by the Supreme Court (the Insolvency Rules ), allows for the recognition of foreign insolvency proceedings. In relation to this, the Insolvency Rules define a foreign proceeding as a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency, in which proceeding, the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of rehabilitation, re-organization and liquidation. Specifically, the Insolvency Rules allow a foreign representative to apply with a Philippine court where the debtor resides or has its principal office for the recognition of the foreign proceeding in which the foreign representative has been appointed. If a foreign proceeding is recognised, a Philippine court may, among other things, stay the commencement or continuation of individual actions or individual proceedings concerning the debtor s assets, rights, obligations or liabilities, as well as an execution against the debtor s assets, and suspend the right to transfer, encumber or otherwise dispose of any assets of the debtor. The foreign representative may likewise be allowed to participate, through counsel, in any proceeding involving the debtor filed under the Insolvency Rules. Philippines ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

131 Gatmaytan Yap Patacsil Gutierrez & Protacio Philippines Philippines A Philippine court, however, may refuse to recognise a foreign proceeding if (a) the action would be manifestly contrary to the public policy of the Philippines, and (b) the country where the foreign proceeding has been filed does not extend recognition to a Philippine rehabilitation proceeding or that the country of which the foreign creditor is a national does not grant the same rights to a Philippine creditor in a manner substantially in accordance with [the Insolvency Rules]. In order that a foreign proceeding may be recognised by a Philippine court, the foreign representative must file a petition accompanied by: (a) a certified copy of the order commencing the foreign proceeding and appointing the foreign representative; (b) a certificate issued by the foreign court affirming the existence of the foreign proceeding and the appointment of the foreign representative; (c) in the absence of the foregoing, any other evidence acceptable to the Philippine court to prove the existence of the foreign proceeding and the appointment and identity of the foreign representative; and (d) any additional evidence that the court may deem necessary. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? We have not seen any case for recognition/enforcement of a foreign judgment filed before a Philippine court where the foreign court purported to apply Philippine law. Nevertheless, we believe that the foreign judgment may be recognised/enforced in the Philippines if the foreign court s interpretation or application of Philippine law is consistent with domestic jurisprudence and practice. If not, there would be a risk that the foreign judgment may be refused recognition/enforcement on the ground that it is based on a clear mistake of law or fact. Once again, however, we note that there currently are no clear tests or guidelines for determining when or under what conditions a mistake of law or fact would constitute a clear mistake, which would bar the recognition/enforcement of a foreign judgment by Philippine courts. 2.7 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? There is a risk that a foreign judgment may be refused recognition and enforcement when there is a conflicting local judgment between the same parties relating to the same issue. The refusal by a Philippine court to recognise/enforce a foreign judgment in this situation may be premised on the theory that the conflicting local judgment demonstrates that the foreign judgment is based on a clear mistake of law or fact. In turn, a foreign judgment may be given the effect of res judicata with respect to local proceedings pending between the parties, provided that the party opposed to the judgment has been given the opportunity to resist recognition/enforcement on the grounds provided by law. Alternatively, if the party opposed to the judgment has not been given the opportunity to resist recognition/enforcement, the action for recognition/enforcement may be ordered consolidated with the pending local proceedings, as illustrated in Philsec Investment Corporation v. Court of Appeals (supra) Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There are no such differences, owing to the fact that the Philippines has a unitary form of government. Moreover, Article VIII of the 1987 Philippine Constitution provides that the Philippines shall have only one Supreme Court, which shall have the power to promulgate rules concerning pleading, practice, and procedure in all Philippine courts. In this connection, the Rules, including the provisions dealing with the recognition/enforcement of foreign judgments, were promulgated by the Supreme Court, and therefore apply across all domestic courts What is the relevant limitation period to recognise and enforce a foreign judgment? Article 1144 of the Civil Code provides that actions based on judgments must be brought within ten years from the time the right of action accrues. Article 1144 of the Civil Code does not distinguish between local and foreign judgments. 2.8 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? There would be a risk that the foreign judgment might be refused recognition/enforcement when there is a conflicting local law or prior judgment by the Supreme Court on the same or similar issue, but between different parties. The refusal of recognition/ enforcement may be based on the clear mistake of law or fact or public policy defences available to parties opposing the recognition/ enforcement of foreign judgments. In relation to this, Article 17 of Republic Act No. 386, otherwise known as the Civil Code of the Philippines (the Civil Code ), provides that prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. In relation to this, we note that only decisions of the Supreme Court constitute binding precedent under Philippine law. 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? This is not applicable in the Philippines. 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? This is not applicable in the Philippines ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

132 Gatmaytan Yap Patacsil Gutierrez & Protacio Philippines 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. This is not applicable in the Philippines. 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? This is not applicable in the Philippines. Philippine courts may also order the execution of specific acts required in the foreign judgment such as: (a) the delivery of deeds conveying property; (b) the sale of property; (c) the delivery or restitution of real property; (d) the removal of improvements on property; and (e) the delivery of personal 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. Philippines 4 Enforcement There have been no noteworthy developments. 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Once a Philippine court renders a final and executory decision recognising a foreign judgment, the prevailing party may file a motion seeking the issuance of a writ of execution (the Writ ) for the enforcement or implementation of the Philippine court s judgment. In this regard, a Philippine court s decision generally becomes final and executory upon the lapse of 15 days from the losing party s receipt of a copy of the court s decision, with no appeal or motion for reconsideration having been filed within that period. The Writ is a process issued by a Philippine court directing the sheriff to enforce it in accordance with its terms. The Writ shall state the principal obligation and the interest, costs, damages, rents or profits due as of the date of its issuance. If the foreign judgment recognised by a Philippine court requires the payment of money, the court sheriff shall enforce the Writ by demanding that the judgment debtor immediately pay the amount stated in the Writ, together with all lawful fees. The judgment debtor may pay this amount in cash, certified bank check, or any other manner of payment acceptable to the judgment creditor. If the judgment debtor cannot pay all or a portion of the judgment obligation, the sheriff may either levy on the judgment debtor s real or personal properties which are not exempt from execution, and thereafter sell all or a portion of those properties sufficient to cover the amount of the judgment obligation, or levy on debts due the judgment debtor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery, in the possession or control of third parties. 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? If a party foresees that a proceeding before a foreign court may result in a judgment which may be enforced in the Philippines, that party must immediately get a Philippine law perspective on the issues. As discussed above, Philippine law is relevant especially when a foreign court s judgment is to be enforced in the Philippines. Philippine courts may refuse to recognise and enforce foreign judgments if they are contrary to Philippine laws or public policy. In addition, a party seeking to recognise and enforce a foreign judgment in the Philippines must be prepared to refute the possible challenges that may be raised by the party opposed to the judgment. Before filing an action with the Philippine courts, a party seeking to have a foreign judgment recognised and enforced must be prepared with proof of the foreign judgment, laws proving the foreign court s jurisdiction over the subject matter of the dispute and over the parties. In certain cases (e.g., recognition of divorce decrees), a party seeking the recognition and enforcement of a foreign judgment must also be prepared to prove the foreign law applied by the court or tribunal in rendering the foreign judgment. It also bears noting that Philippine litigation, including proceedings for the recognition and enforcement of foreign judgments, are prone to delays, and it may take two to three years for a case to be resolved at the trial court level alone (i.e., to the exclusion of appellate court proceedings). ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

133 Gatmaytan Yap Patacsil Gutierrez & Protacio Philippines Philippines Jess Raymund M. Lopez Gatmaytan Yap Patacsil Gutierrez & Protacio 30/F 88 Corporate Center Corner of Valero and Sedeño Streets Salcedo Village Makati City, Metro Manila, 1227 Philippines Tel: /78/79 Fax: URL: Jess is heavily involved in the Firm s litigation and arbitration practice areas. He obtained his Juris Doctor Degree from the Ateneo de Manila College of Law in 2009, where he ranked fourth in his class, and obtained a silver medal for academic excellence. He joined C&G Law in October 2009, and was promoted as one of the Firm s senior associates effective January 1, Jess was then admitted as a Partner effective January 1, Jess is also a part-time lecturer at the Ateneo de Manila School of Law, where he teaches Torts and Damages, and Legal Forms. Jess also previously taught Transportation and Public Utilities Law and Credit Transactions at the Far Eastern University De La Salle University J.D., MBA Consortium. Vladi Miguel S. Lazaro Gatmaytan Yap Patacsil Gutierrez & Protacio 30/F 88 Corporate Center Corner of Valero and Sedeño Streets Salcedo Village Makati City, Metro Manila, 1227 Philippines Tel: /78/79 Fax: vmslazaro@cagatlaw.com URL: Miggy is involved in the Firm s energy, tax, labour, commercial, and criminal litigation practice areas. He obtained his Juris Doctor Degree from the Ateneo de Manila College of Law in 2010, where he graduated with honours. He joined C&G Law in August 2011 and was promoted to senior associate effective April Since joining C&G Law, Miggy has appeared before trial and appellate courts and specialised tribunals and has represented clients from different industries. Gatmaytan Yap Patacsil Gutierrez & Protacio (C&G Law) is a full-service law firm of over 35 lawyers in the Philippines, specialising in corporate and commercial transactions, litigation and arbitration, as well as taxation and labour and employment. C&G Law was established in February 2007 by Alfredo Benjamin S. Caguioa, Jaime Renato B. Gatmaytan, Ben Dominic R. Yap, Norma Margarita B. Patacsil, Anthony Mark A. Gutierrez, and Jesus Paolo U. Protacio, each of whom brought with him significant experience and expertise in a broad range of practice areas and diverse fields of law. Cesar E. Santamaria, Jr., Mary Thel T. Mundin and Jess Raymund M. Lopez were admitted as partners of the firm in 2011, 2015 and 2017, respectively. C&G Law was formerly known as Caguioa & Gatmaytan. The change of name was brought about by Mr. Caguioa s withdrawal from the firm in January 2013 following his appointment as Chief Presidential Legal Counsel and subsequently as Secretary of the Department of Justice by Philippine President Benigno C. Aquino III. In January 2016, Mr. Caguioa was appointed as a Justice of the Philippine Supreme Court. C&G Law is a member firm of the Rajah & Tann Asia, Southeast Asia s largest legal network ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

134 Chapter 25 Portugal Nuno Albuquerque N-Advogados Nuno Albuquerque, Deolinda Ribas, Sociedade de Advogados, R.L. Filipa Braga Ferreira 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 Portuguese Code of Civil Procedure; Portuguese Code of Civil Enforcement Proceedings and Corresponding Case Law Brussels I Bis Regulation: EU Regulation no 1215/2012, of 12 December 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Brussels II Bis Regulation: Council Regulation (EC) no 2201/2003, of 27 November 2003, on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility Insolvency Regulation: Regulation (EU) no 2015/848, of 20 November 2015, of the European Parliament and of the Council on insolvency proceedings Succession Regulation: Regulation (EU) no 650/2012, of 4 July 2012, of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession Relevant Jurisdiction(s) All countries to which none of the below specific statutes/regulations apply All countries within the EU All countries within the EU All countries within the EU All countries within the EU Corresponding Section Below Section 2 Section 3 Section 3 Section 3 Section 3 Applicable Law/Statutory Regime Lugano Convention: Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, of 21 December 2007 New York Convention: New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 Washington Convention: Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, of 18 March General Regime Relevant Jurisdiction(s) Switzerland, Norway and Iceland All signatory countries All signatory countries Corresponding Section Below Section 3 Section 3 Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Apart from the regulations and conventions stated in question 1.1, in the Portuguese legal regime, the recognition and enforcement of foreign judgments is provided in the Civil Procedure Code (Código do Processo Civil), Book V, Special forms of procedure, Title XIV, The foreign judgment review, article 978 et seq., and supplemented by relevant case law on the numerous matters on which the codes remain silent. In a civil law jurisdiction such as Portugal, case law is not binding but is highly persuasive on lower courts. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? In order to be recognised and enforced in Portugal, the foreign judgment has to pass through a formal recognition process called exequatur. To begin this process, the party must first file a claim that should be accompanied by the original or a certified copy of the following documents: The foreign judgment duly legalised or apostilled. The date when the decision was rendered in default. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

135 N-Advogados Nuno Albuquerque, Deolinda Ribas Portugal Portugal A document verifying that the defendant was notified with a summoning order. A document attesting that the ruling is final and enforceable in the country of origin. Translations of the documents. Proof of power of attorney. In addition are the following legal requirements required in the Portuguese legal order, stated in article 980 of the Civil Procedure Code: That there is no doubt regarding the authenticity of the document containing the judgment or the intelligence of the decision. That the judgment has become final in accordance with the law of the country in which it was issued. That the judgment comes from a foreign court whose jurisdiction has not been provoked as a consequence of fraud and is not a matter with the exclusive competence of the Portuguese courts. That the exception of lis pendens or res judicata cannot be invoked to question the jurisdiction of the Portuguese court, except if it was the foreign court which prevented the jurisdiction. That the defendant has been regularly summoned for the action, under the law of the country of the court of origin, and that in the proceedings the principles of the adversary and equality of the parties have been observed. That the judgment does not contain a decision whose recognition leads to a result manifestly incompatible with the principles of the international public order of the Portuguese State. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Portuguese law distinguishes between recognition and enforcement of judgments. On one hand, recognition is a process that gives the same effects to the judgment in Portugal as it does in the State where it was produced (the State in which enforcement is petitioned by any of the parties). This happens by introducing into the Portuguese legal order the same situation that was established in the legal order of the State of origin. On the other hand, enforcement means that a judgment can be executed before a Portuguese court, allowing the party to act coercively against the debtor in Portugal. In practice, creditors seeking to recover a claim in Portugal will seek an enforcement order (termed an exequatur ). 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. The exequatur procedure, as described in question 2.2, will take place at the Court of Second Instance (Tribunal da Relação), of the registered domicile of the defendant, which is the competent court in Portugal to deal with this kind of process. However, if the judgment in question is an arbitral award, the competent court will be the First Instance Court (Tribunal da Primeira Instância). Also, Article III of the New York Convention prescribes that the procedure for recognition and enforcement of foreign arbitral judgments follows the same procedure as judicial judgments as stated in the Civil Procedure Code. The Portuguese system of recognition of foreign judgments is a formal system in which the court limits its activity to the verification of the compliance of the judgment with the form requisites (regularity requirements). To recognise a foreign judgment, in accordance with articles 978 to 985 of the Civil Procedure Code, the main steps are the following: The claim (petição inicial). After the presentation of the claim at Court, the Court will make a preliminary analysis of the claim, to check it obeys the legal requisites for the process to proceed. If the claim obeys the conditions, the defendant is cited to present its statement of defence (contestação). Following the presentation of the statement of defence by the defendant, if any matter arises that deserves a response from the claimant, there will be place for a written response (resposta). Once the written statements are finished, the parties and the Public Ministry have 15 days to plead and there is a trial and decision. The decision can be subject to appeal if any of the parties do not agree with the decision and comply with the legal requisites to appeal. To enforce the judgment, the creditor must summon the other party before the court of the opposing party s domicile or the court of the place where the enforcement is contemplated. The decision will be made by a single judge, after a period of exchange of written submissions and a hearing. The parties must be represented by a lawyer. The claim is to be accompanied by: a copy of the decision; proof of power of attorney; and other documents that are considered relevant to the enforcement proceedings. The bailiff or the execution agent proceeds with the enforcement, rendering an order stating the affected parties and the subject matter of the enforcement, as well as the investigation and research measures aimed to localise the assets of the judgment debtor. Finally, once the assets have been identified, they will be allocated to the creditor. Notifications are performed by bailiffs or execution agents. When the recipient is domiciled abroad, unless provided otherwise by special conventions on international notifications, a special procedure applies. Please note that, in case of opposition to the enforcement of the foreign judgment, the ruling deciding on such opposition 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. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The Portuguese courts do not review the merits of the judgment, because the process is thought to only verify that formal requirements are fulfilled. Therefore, the judgment can only be challenged if it does not comply with the formal requirements. However, the system for reviewing foreign judgments is shaped by the principle of formal review. This principle is based on the restriction that a decision should not be granted if it leads to a result that is manifestly incompatible with the international public policy principles of the Portuguese State, i.e. principles that derive from a complex of rules, inspired by political, moral and economic factors which are accepted by a number of nations as an expression of an identical civilisation and culture and which are therefore embodied in the legal order of a number of States with which Portugal has legal affinities, in line with the Portuguese Constitution (Constituição da República Portuguesa CRP). Therefore, the judgment can also be challenged if it is incompatible with international public policy or if it was procured by fraud ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

136 N-Advogados Nuno Albuquerque, Deolinda Ribas Portugal 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? The legal framework for the recognition and enforcement of foreign judgments normally applies 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 Portugal. Also, as an exception, we can point to the multilateral conventions to which Portugal is a party, that contain specific provisions as to recognition and enforcement, such as those stated in question 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? As stated above in question 2.5, the Portuguese courts only make a formal revision of foreign judgments. Therefore, courts cannot appreciate the merits of the judgment, so if the judgment complies with the formal requirements stated in article 980 of the Civil Procedure Code, the judgment must be recognised, unless it is against Portuguese international public order principles. A foreign judgment is not recognised and declared enforceable if Portuguese court proceedings are pending before the proceedings on which the judgment is based are finalised. By contrast, proceedings pending before foreign courts are irrelevant. 2.8 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? In Portugal there is no review of the merits of the judgment. This means that Portuguese courts generally do not review 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 an incompatibility with international public policy rules, since Portugal is a civil law country and does not use the precedent principle. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? Portuguese courts cannot review the merits of a foreign judgment, even if the foreign court incorrectly applied the law. The revision will be limited to verifying whether any of the conclusions or the procedure led to a breach of public policy rules. Therefore, there is no particular approach to the recognition and enforcement of a foreign judgment that purports to apply Portuguese law Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. Portuguese law applies to whole Portuguese territory. There are no specific local laws regarding this matter What is the relevant limitation period to recognise and enforce a foreign judgment? There is no specific provision regarding the limitation period to enforce a foreign judgment. However, claims that have been declared final and absolute are time-barred after 30 years. 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 conventions mentioned in question 1.1 above require that the foreign judgment is final and binding in the country of origin before being recognised and enforced in another country. Also, the foreign judgment must have been rendered by a court of competent jurisdiction according to private international law rules. The conventions also require that the defendant must have been properly summoned. Below, we give a short summary of the conventions to which Portugal is a signatory and its particularities. Brussels I Bis Regulation: Under Brussels I Bis Regulation, the decisions that can be recognised and enforced are on civil and commercial matters. The decisions concerning these matters, rendered by any Member State, will be automatically recognised, without the need for exequatur. Also, 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. Brussels II Bis Regulation: The decisions that can be enforced under Brussels II are those of matrimonial matters and parental responsibility matters, mainly regarding divorce, nullity of marriage, and rulings on the parental responsibility of the parents. It also expressly recognises the possibility of partial enforcement. With minor differences, it reproduces the requirements set out in the Brussels I Bis Regulation. Insolvency Regulation: Regarding the Insolvency Regulation, the decisions that can be enforced are those that comply with the definition provided in its Article 2, which mainly refer to any resolution issued in the context of an insolvency proceeding. It also expressly refers to the provisions of Brussels I for the enforcement of such judgments. Succession Regulation: Under Regulation 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, the decisions that can be enforced are those that comply with the definition provided in Article 3, paragraph g): any decision in a matter of succession given by a court of a Member State, and that fall within its scope. It is very similar to Brussels I Bis Regulation, except for some small differences such as interim measures that can be ordered together with the enforcement of the judgment. It also recognises the possibility of partial enforcement. Portugal ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

137 N-Advogados Nuno Albuquerque, Deolinda Ribas Portugal Portugal Lugano Convention: Under the Lugano Convention, the decisions which ought to be enforced are those that fall within its scope. The requirements are very similar to those required under the Brussels I Bis Regulation, except for interim measures, which can be ordered along with the enforcement of the judgment. It also recognises the possibility of partial enforcement. NY Convention: The New York Convention of 1958 is applicable to any arbitral awards that fall within the description of its Article I. This Convention has the purpose of providing a form of proceedings whose purpose is to confer validity and enforceability to a foreign arbitral award within a specific legal order. It also prescribes the enforcement of foreign arbitral judgments. However, the execution can only begin after the judgment has become valid and effective; in other words, after having been duly recognised. In order to obtain recognition and enforcement, the party shall supply the duly authenticated original award or a duly certified copy, the original arbitration agreement or a duly certified copy. Also, if the said award or agreement is not made in the official language of the country in which the award is enforced, the party applying for recognition and enforcement of the award shall translate these documents into such language, which shall be an official or sworn translation. Washington Convention: The Washington Convention of 1965 is applicable to arbitral awards issued by the International Centre for Settlement of Investment Disputes (ICSID) for disputes concerning an investment between a signatory State and a national of another signatory State. To recognise a judgment, a copy of the award certified by the Secretary-General is required. According to paragraph 1 of article 54 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. 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? All conventions provide for automatic recognition of foreign judgments, which has the same effects and limitations as described under the general regime. 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. 3.4 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? According to the conventions listed in question 1.1, enforcement can be challenged if the form requirements are not fulfilled. Recognition and enforcement of foreign arbitral awards can be refused on the grounds set out in Article V of the New York Convention. These include: lack of a valid arbitration agreement; violations of the right to be heard; excess of authority; 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. Beyond these grounds, no further review of the award is possible. In particular, there is no review of the merits of the judgment. Also, recognition and enforcement will be denied if the judgment conflicts with Portuguese international public policy rules. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? A judgment creditor can proceed with the enforcement of a judgment, with interim enforcement measures on the basis of a foreign judgment even before beginning recognition/enforcement court proceedings in Portugal, requesting the seizure of assets of the debtor when there is a threat to the recovery of the values in debt. In practice, such a threat will result from evidence that the debtor 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. The assets 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 the court orders the attachments to be lifted, the assets will remain frozen for the duration of the enforcement procedure. If the court orders 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 real estate, bank accounts, claims, dividends, royalties, vehicles, etc. The debtor can challenge enforcement measures. The case must be filed before court, where the parties file briefs and appear in court. The judgment confirming or lifting the attachments can be appealed. The conventions provide simplified proceedings to obtain enforcement of a foreign judgment. The creditor must summon the other party before the Court. The claimant must provide a copy of the foreign judgment together with a translation, a copy of the notification of the decision to the debtor and a certificate from the foreign court certifying that no appeal was filed. 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. Not that we are aware of ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

138 N-Advogados Nuno Albuquerque, Deolinda Ribas Portugal 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? Creditors are aware of the fact that enforcement proceedings in Portugal are often slow. For example, in some cases, notifications can be an extremely slow phase of the process, especially when the debtor is domiciled abroad. In addition, all enforcement-related acts are performed by bailiffs (agentes de execução). Portuguese bailiffs are hired by the parties themselves rather than appointed by the court. Retaining the services of a competent bailiff is a key part of enforcing in Portugal and enhances the likelihood of effective collection. Also it is important to meet at the outset all the legal requirements set out in the relevant regulation (including any minor procedural 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. Portugal Nuno Albuquerque N-Advogados Nuno Albuquerque, Deolinda Ribas, Sociedade de Advogados, R.L. Rua Bernardo Sequeira, 78, 1 st Floor Braga Portugal Tel: /310 nunoalbuquerque@nadv.pt URL: Filipa Braga Ferreira N-Advogados Nuno Albuquerque, Deolinda Ribas, Sociedade de Advogados, R.L. Rua Bernardo Sequeira, 78, 1 st Floor Braga Portugal Tel: /310 filipaferreira@nadv.pt URL: Born on July 19, 1964, in Angola. Nuno has a law degree from the University of Coimbra (1988). Nuno has been inscribed in Portugal s Bar Association, as a lawyer, since 1990, in Angola s Bar Association since 2008, and in Paris Bar Association since He is an insolvency administrator, inscribed in the official list of insolvency administrators since Nuno has been the executive director of CAAL the Angolan arbitration centre for litigation since He is a certified mediator of public and private mediation at ICFML, Catholic University, Oporto, as of He has been an arbitrator for CAAD Administrative Arbitration Centre and also for TAD Sports Arbitral Court (where he is also Vice-President) since In 2016, he was also appointed as an arbitrator at the Arbitration Centre for Property and Real Estate. Nuno is the founding partner of N-ADVOGADOS Nuno Albuquerque, Deolinda Ribas, Sociedade De Advogados, R.L., with over 20 years of experience. Born on September 5, 1981, in Braga, Portugal. Filipa has a law degree from the University of Minho (2004). Between 2007 and 2010, Filipa collaborated with a notary, and is therefore familiarised with notarial functions. Filipa attended a Short Term Advanced Course on Local Authorities in 2005 at the University of Minho. Filipa has been legally qualified to give professional training since Filipa has been inscribed in Portugal s Bar Association, as a lawyer, since 2010, and has worked at N-ADVOGADOS Nuno Albuquerque, Deolinda Ribas, Sociedade De Advogados, R.L. since then. She has solid experience in advising national and international companies and groups, especially in the international market, namely in relation to foreign investment, financing agreements, international negotiation, the formation process of companies abroad, registration of foreign companies, as well as acquisition of national companies or international groups of the company, or of its assets, including national or international mergers. N-ADVOGADOS Nuno Albuquerque, Deolinda Ribas, Sociedade de Advogados, R.L., is a global law firm qualified to support individuals and companies, State entities and Economic Groups. With twenty years of experience and professional practice, as much in public as private law, litigation and commercial law, N-ADVOGADOS has a set of professionals and technical methods based in solid values of severity, excellency and dedication to its Clients. N-ADVOGADOS has been developing an internationalisation project through the implementation of offices in other countries, as in France and in the Community of Portuguese Language Countries (Angola and Mozambique), as well as to establish a network of partnerships in some of the main international markets, as Brazil, Spain, England, Turkey and Israel. N-ADVOGADOS seats its actuation in values such as excellence, independence, professionalism, quality of legal services and competence of its lawyers and collaborators, with respect for the ethical and deontological rules. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

139 Chapter 26 Russia Astashkevich and partners Attorneys at Law Anastasia Astashkevich 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 Treaty between the USSR and the People s Republic of Hungary on legal assistance on civil, matrimonial and criminal issues Protocol issued Relevant Jurisdiction(s) Corresponding Section Below Hungary Section 3 Applicable Law/Statutory Regime New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, Minsk Agreement on the procedure for resolving disputes relating to the implementation of economic activity, Kiev Agreement between the USSR and Republic of Austria on civil procedure issues Treaty between the Russian Federation and the Republic of Azerbaijan on legal assistance and legal relations on civil, matrimonial and criminal issues Treaty between the USSR and the People s Republic of Albania on legal assistance on civil, matrimonial and criminal issues Treaty between the Russian Federation and the Republic of Argentina on collaboration and legal assistance on civil, trade, labour and administrative issues Agreement between the Russian Federation and Republic of Belarus on procedure of mutual enforcement of court decisions between arbitration courts in Russia and economic courts of the Republic of Belarus Treaty between the USSR and the People s Republic of Bulgaria on legal assistance on civil, matrimonial and criminal issues Relevant Jurisdiction(s) All countries signatory to the Convention All countries within CIS and Georgia All countries within CIS Corresponding Section Below Section 3 Section 3 Section 3 Austria Section 3 Azerbaijan Section 3 Albania Section 3 Argentina Section 3 Belarus Section 3 Bulgaria Section 3 Treaty between the USSR and the Socialist Republic of Vietnam on legal assistance on civil, matrimonial and criminal issues Treaty between the USSR and Republic of Greece on legal assistance on civil and criminal issues Treaty between the Russian Federation and Arab Republic of Egypt on mutual legal assistance and legal relations on civil, commercial and matrimonial issues Treaty between the Russian Federation and Republic of India on legal assistance and legal relations on civil and trade issues Treaty on mutual legal assistance between the USSR and Iraq Republic Treaty between the Russian Federation and Islamic Republic of Iran on legal assistance and legal relations on civil and criminal issues Treaty between the USSR and Kingdom of Spain on legal assistance on civil issues Convention between the USSR and Republic of Italy on legal assistance on civil issues Treaty between the USSR and People s Democratic Republic of Yemen on legal assistance on civil and criminal issues Treaty between the USSR and Republic of Cyprus on legal assistance on civil and criminal issues Vietnam Section 3 Greece Section 3 Egypt Section 3 India Section 3 Iraq Section 3 Iran Section 3 Spain Section 3 Italy Section 3 Yemen Section 3 Cyprus Section ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

140 Astashkevich and partners Attorneys at Law Russia Applicable Law/Statutory Regime Treaty between the Russian Federation and People s Republic of China on legal assistance on civil and criminal issues Treaty between the USSR and People s Democratic Republic of Korea on legal assistance on civil, matrimonial and criminal issues Treaty between the USSR and Republic of Cuba on legal assistance on civil, matrimonial and criminal issues Treaty between the Russian Federation and Republic of Kyrgyzstan on legal assistance and legal relations on civil, matrimonial and criminal issues Treaty between the Russian Federation and Republic of Latvia on legal assistance and legal relations on civil, matrimonial and criminal issues Treaty between the Russian Federation and Republic of Lithuania on legal assistance and legal relations on civil, matrimonial and criminal issues Treaty between the Russian Federation and Republic of Moldova on legal assistance and legal relations on civil, matrimonial and criminal issues Treaty between the USSR and People s Republic of Mongolia on legal assistance on civil, matrimonial and criminal issues Protocol issued Treaty between the Russian Federation and Republic of Poland on legal assistance and legal relations on civil and criminal issues Treaty between the USSR and People s Republic of Romania on legal assistance on civil, matrimonial and criminal issues Treaty between the USSR and Federative People s Republic of Yugoslavia on legal assistance on civil, matrimonial and criminal issues Treaty between the USSR and Socialistic Republic of Czechoslovakia on legal assistance and legal relations on civil, matrimonial and criminal issues Treaty between the USSR and Republic of Tunisia on legal assistance on civil and criminal issues Treaty between the USSR and Republic of Finland on legal assistance and legal relations on civil, matrimonial and criminal issues Protocol issued Relevant Jurisdiction(s) Corresponding Section Below China Section 3 Korea Section 3 Cuba Section 3 Kyrgyzstan Section 3 Latvia Section 3 Lithuania Section 3 Moldova Section 3 Mongolia Section 3 Poland Section 3 Romania Section 3 Serbia, Macedonia, Slovenia, Croatia Slovakia, Czech Republic Section 3 Section 3 Tunisia Section 3 Finland Section 3 Applicable Law/Statutory Regime Treaty between the Russian Federation and Republic of Estonia on legal assistance and legal relations on civil, matrimonial and criminal issues General Regime Relevant Jurisdiction(s) Corresponding Section Below Estonia Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? The Russian Federation is a party to more than 30 bilateral and multilateral inter-state conventions, treaties, agreements on mutual legal assistance in civil, commercial and matrimonial issues. In the majority of cases the procedure of recognition or authorisation of enforcement of a foreign judgment in the territory of the Russian Federation is regulated by international agreements. In accordance with articles of the Civil Procedure Code of the Russian Federation, which provides for the form and content of the statements, the order of their submission and consideration, generalised basis of application, etc., foreign judgments are mostly recognised if the country is a party to any of the agreements, concerning mutual recognition of foreign court judgments. Chapter 31 of the Arbitration Procedure Code of the Russian Federation sets up the proceedings on the recognition and enforcement of foreign judgments and foreign arbitral awards (articles ). 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? According to Russian legislation, with regard to international legal agreements of the Russian Federation, the recognition and enforcement of judgments is allowed based on the treaties on legal assistance concluded by the USSR and Russia. The treaties on legal assistance concluded by Russia with other countries contains the basic conditions for the recognition and enforcement of foreign judgments, if: 1) the decision has come into force. This is determined on the basis of the legislation of the country where the decision was rendered; 2) the resolution of the merits observed the procedural rights of the person against whom the award was awarded; 3) there is no other judgment which came into force on the dispute between the same parties and the same subject issued by a court in the State in whose territory the decision is to be recognised or enforced; and 4) in the process of hearing the case and rendering judgment, the provisions of international agreements on the delimitation of the competence of the courts of different countries are complied with. In a number of contracts other conditions may be specified (for example, if the period of enforcement of the decision has not expired under the laws of both states). Recognition in Russia of a foreign court s decision means that it has the same legal force as decisions of Russian Courts. Therefore, a foreign judgment, which is to be recognised in the Russian Federation, is the basis for refusal to accept Russia s claim on the dispute between the same parties on the same subject, on the same grounds, or subject for the termination of the case. Russia ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

141 Astashkevich and partners Attorneys at Law Russia Russia All interim/interlocutory decisions cannot be enforced in the Russian Federation, only final judgments and arbitral awards. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Habitually, court decisions, if they are recognised, can be enforced on the territory of the Russian Federation. However, there are some cases where the decision, even after recognition, cannot be enforced due to the absence of regulation in the relevant sphere for the necessary mechanisms of enforcement. In a broad sense, there is of course a difference between a court decision on recognition of a foreign judgment and the procedure of enforcement. An identical case is pending before a court in Russia, and it arose earlier than the beginning of its consideration in a foreign court. Execution of the decision is likely to prejudice the sovereignty of the Russian Federation or threatens the security of the Russian Federation, or is contrary to the public policy of the Russian Federation. The statute of limitations expired on bringing solutions to enforcement, and this term has not been restored by the court in the Russian Federation on the claimant s request. Article 412 of the Civil Procedure Code of the RF provides a list of the most universally recognised grounds for refusing recognition and enforcement of foreign judgments. However, specific reasons for refusal and procedures may be laid down in certain international agreements and treaties. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. In order to start the procedure of enforcement, the submission of an application by a party to a dispute in whose favour the decision is made, is required. The application should be submitted to the regional court or at the place of residence or location of the debtor, or if the location or place of residence of the debtor is unknown, then the location of the debtor s property. Requirements for the application for enforcement of a foreign judgment are provided in article 411 of the Civil Procedure Code (CPC) of the Russian Federation (RF). According to the general provisions, the applicant must specify the information on the parties to the dispute and their addresses, a request to permit the enforcement of the decision or an indication of when its execution is required, as well as a list of attached documents. The list of documents that should be attached is stated in p. 2 article 411 CPC RF, which include certified copies of the decision, documents on its entry into force, notice to the defendant, and others. An application for enforcement of a foreign judgment or foreign award is heard in an open court hearing with the debtor being given notice of the time and place of court proceedings, but the debtor s failure to appear without good reason is not an impediment to the proceedings. It is possible that the defendant may ask the court to postpone the proceedings. The court of the Russian Federation may not review the foreign judgment on the merits; it only checks whether there are grounds for enforcement of a foreign judgment, or if it should be denied. Grounds for refusing recognition and enforcement of foreign court decisions and foreign arbitral awards in whole or in part are listed in articles 412, 414 and 417 CPC RF. These are the common grounds for refusal usually included in international conventions, agreements and contracts. It seems to be much easier to enforce the decisions of foreign courts of arbitration, since they are subject to the New York Convention, which has been ratified and signed by 140 States. Article 412 of the Civil Procedure Code of the Russian Federation contains the list of grounds for refusal of the enforcement of foreign court decisions; most of these are also grounds to refuse to recognise and enforce foreign arbitral awards. These grounds are as follows: The foreign judgment has not yet entered into force or is not enforceable under the law of the State in which it is taken. The party against whom the award is invoked was been not properly informed of the process and therefore was deprived of the opportunity to participate in the proceedings. Consideration of the matter is within the exclusive jurisdiction of the Russian court. There is an identical court judgment which has entered into force in the Russian Federation. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? The Civil Procedure Code contains an exhaustive list of the grounds for challenging the foreign judgment, set out in article 412: the decision has not come into force; the defendant was not properly informed of the proceedings; the case could be considered by virtue of the exclusive jurisdiction of the courts in Russia; a court decision of the Russian Federation on the dispute has entered into legal force; execution of the decision is likely to prejudice the Russian Federation or is contrary to the public policy of Russia; and the three-year term of filing an application for enforcement has expired. Meanwhile, attention should be paid to the differences existing in civil and arbitration procedure codes on the matter. The Arbitration Procedure Code contains the same grounds for refusal to recognise a foreign judgment and grounds for its enforcement; this is confirmed by the title of article 244, Grounds for refusing recognition and enforcement of foreign court decisions and foreign arbitral award. The Civil Procedure Code contains the grounds for refusal of enforcement and denial of recognition of foreign judgments in two separate articles. In contrast to the enforcement of court decisions, no special proceeding is required for the recognition of foreign judgments if the defendant does not have any objections to it (article 413 CPC RF). In addition to national legislation, grounds for refusal of recognition of foreign judgments and enforcement are fixed in the relevant international treaty. Thus, for the preparation of the appropriate legal position, it is of paramount importance to ascertain the appropriate legal rules governing the issue of recognition and enforcement. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? In order to enforce the judgment, it should enter into force. Thus the creditor is required to submit, together with a certified copy of the judgment, a specific confirmation of entry into force from the court. It may be a mark directly on the copy of the judgment or a separate official report, signed and sealed with the seal of the court. However, there may be some exceptions. Thus, according to the Minsk Convention of 1993, immediate implementation of the decisions on certain categories of cases under domestic law (Sec. 2, article 53) ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

142 Astashkevich and partners Attorneys at Law Russia is admissible, and in the treaty on legal assistance between Russia and Poland this is only provided for aliment decisions (p. 2 article 54). Of course, an official document is not necessary if the decision coming into effect derives from the text of the decision itself. In addition to a copy of the court decision and the confirmation of its entry into force, there is a compulsory set of documents that accompany application for enforcement of a foreign court judgment in the territory of the Russian Federation (p. 2, article 411 CPC RF, p. 3 of article 242 of the Arbitration Procedure Code). The application of the creditor for enforcement must be accompanied by a document confirming the proper notification of the defendant, if the defendant has not appeared in court, about the time and place of the proceedings. In cases where the foreign decision was previously enforced in the country where it was rendered, this must be certified by an appropriate document. It is a prerequisite condition in Russian courts that the application is duly certified and all materials have been translated into Russian. If the application is submitted to the arbitration court, it must be accompanied with the power of attorney or other document, duly certified and confirming the authority of the person signing the application to the Arbitration Court, as well as a document confirming the conveyance to the debtor of a copy of the application for enforcement of a foreign judgment. In applications for enforcement of a foreign arbitral award, if an international treaty of the Russian Federation does not provide otherwise, a properly authenticated original foreign arbitral award or a duly certified copy thereof, the original agreement for arbitration or a duly certified copy thereof, and a duly certified translation into Russian of the two above-mentioned documents should be attached. 2.7 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? In case there is a local conflicting judgment, the foreign judgment cannot be recognised and enforced due to the restrictions stated in article 412 of the Civil Procedure Code of the Russian Federation. If local proceedings are pending between the parties at the same time the foreign judgment was issued and it complies with the requirements and legislation of the Russian Federation, it can still be recognised and enforced in Russia Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. The legislation of the Russian Federation in respect of recognition and enforcement of foreign judgments is equal in all regions of the country What is the relevant limitation period to recognise and enforce a foreign judgment? In accordance with the Arbitration Procedure Code (article 246) and Civil Procedure Code (article 409), the limitation period to recognise and enforce a foreign judgment is three years. 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? All the regimes listed in question 1.1 should satisfy the requirements listed in question 2.1. However, for some categories of cases; for instance, in cases regarding aliments, an easier procedure can be used as stated in question 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? According to the international treaties, some judgments, mostly in the matrimonial sphere, can be enforced automatically; they do not even need the recognition procedure. Other judgments should pass through the recognition stage in court and will be enforced after, if the enforcement of the judgment is technically possible. Russia 2.8 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? The mere existence of a prior judgment on the same or a similar issue, but between different parties, does not automatically exclude the possibility of recognition and enforcement of the judgment within the Russian Federation. At the same time, the judgment under dispute, if it does not comply with existing court practice, can be appealed. If a conflicting law within the Russian Federation exists, this can become a barrier for the recognition and enforcement of a foreign judgment. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? Russian Courts do not review foreign judgments in order to verify if the foreign law was duly applied. However, all foreign judgments should not contradict national legislation. 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. Most of the international treaties and agreements in the sphere under discussion are signed in order to implement procedures for the recognition and authorisation of enforcement of judgments. This requires the following. 1) A person or organisation whose favour the initial judgment was rendered in has to submit an application addressed to the competent court of the State concerned, with a request to allow enforcement in the territory of the State of the decisions referred to in the application, when and by whom it was made as well as the address of the applicant and the address of the debtor. An application for recovery of the amount of the state registration fee, to be determined by the judge, shall be made. It shall contain the bank details required for transfer of amounts in the federal budget. 2) The application shall, as a rule, be accompanied by: a) a certified copy of the court decision; b) a certificate of entry into force of the decision; ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

143 Astashkevich and partners Attorneys at Law Russia Russia c) information that the defendant in due time and in proper form had been notified of the time and place of the trial and had been presented a copy of the statement of claim. Moreover, it is recommended to make a request for an official confirmation of receipt from the defendant of a copy of the judgment; and d) information about the actual execution updated until the day of the application submission (regarding aliments for what period they were collected). In the absence of the abovementioned certificates from the competent court of the foreign state, the court shall refuse to recognise the decision. The most common errors in drafting of applications are as follows: A request is not addressed to the competent court of a particular state, but was addressed to the court that has rendered a decision, or to the territorial authority of the Ministry of Justice of the Russian Federation. The account details and a bank branch where the money recovered should be collected are not specified. The address of the debtor is unknown. The signature of the claimant is not certified by a judge and the seal is not present. Instead of the judge s decision, the court order is sent. It is necessary to clarify that, in accordance with article 125 of the Civil Procedure Code of the Russian Federation, the judge will refuse to accept the application to grant the injunction if the place of residence of the debtor is located outside the Russian Federation. The court order may be directed to the recognition and enforcement procedure in the event that at the time of issue, both sides/participants of the process lived in the territory of the Russian Federation. These provisions describe typical cases and requirements of regulatory legal acts. At the same time, it is recommend to verify in each case if international treaties and norms of the Russian legislation allow recognition and enforcement of the judgment. The procedure of the recognition of a foreign judgment normally does not exceed three months. The judgment of the Russian court can be appealed to the higher court according to the legislation of the Russian Federation. 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? The common rules on challenging foreign judgments (listed in question 2.5) should be applied to all foreign judgments. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Enforcement actions are performed by the bailiff in accordance with Federal Law N 389-FZ and are aimed at creating the conditions for the application of enforcement measures, as well as forcing the debtor in the full, proper and timely fulfilment of the requirements contained in the executive document. The bailiff is entitled to perform the following enforcement actions: 1) call the executive procedure parties (their representatives) and other persons in the cases provided for by the legislation of the Russian Federation; 2) to request the necessary information, including personal data from individuals, organisations and official bodies in the territory of the Russian Federation, as well as in foreign countries, in accordance with the procedure established by the relevant international treaty, to receive from them an explanation, information or help; 3) to carry out checks, including verification of financial documents and the execution of executive documents; 4) to give natural and legal persons an order on execution of the requirements of the executive documents; 5) to enter the residential premises occupied by the debtor or property belonging to the debtor but occupied by any other person for the purpose of execution of executive documents; 6) with the written permission of the senior bailiff to enter, without the consent of the debtor, the premises occupied by the debtor; 7) to seize property, including money and securities, to withdraw the said property, to transfer the arrested and confiscated property for storage; 8) within the limits established by the Federal Law, to assess the property; 9) involve certified (according to the Russian legislation) experts for evaluation of the property; 10) to search the debtor and the debtor s property; 11) to request from the executive production bodies all the necessary information; 12) consider applications and requests of the parties of enforcement proceedings and other persons involved in the enforcement proceedings; 13) to collect performing fees; 14) to apply to the body carrying out state registration of property rights for registration on the name of the debtor of the property belonging to him in the cases and according to the procedure established by the Federal Law; 15) to set the time limit of the debtor s stay in the territory of the Russian Federation; 15.1) to set the time limit for the debtor to use the special right granted to him in accordance with Russian legislation; 16) to verify the correctness of retention and transfer of funds by a judicial act, the act of another body or official, as well as the correctness of debiting of the debtor s account in the register and deposit in depositary accounts, which are opened by professional securities market participants in accordance with the Federal Law, and credited to the account or securities account of the claimant equity securities at the request of the claimant or on its own initiative, including executive documents submitted in accordance with the procedure provided by the law; 16.1) to provide counterclaims confirmed by the executive documents for the recovery of funds; and 17) to perform other actions necessary for the timely, full and proper execution of executive documents. During the enforcement of judicial acts, all personal data collected is processed exclusively for the purpose of execution of executive documents required to meet the requirements established by Federal law. 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. The latest changes were made in the sphere of recognition of judgments in the European Court of Human Rights. According to the Decree of the Constitutional Court of , the judgments ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

144 Astashkevich and partners Attorneys at Law Russia of the ECHR can be recognised on the territory of the Russian Federation only if they do not contradict the Constitution of the Russian Federation. 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? The procedure of recognition and enforcement in the Russian Federation might sometimes last quite a long time, particularly if the Russian party to the dispute has objections to the recognition of the judgment. After the recognition of the judgment there may be also a difficulty to enforce the decision. Even if technically this is possible and the current legislation allows the enforcement, the judgment may be appealed, so the time limit between the initial application and the final enforcement might be from six months to one year. However, comparing Russia to other jurisdictions, the process of the court trial is not as expensive. Anastasia Astashkevich Astashkevich and partners Attorneys at Law Tsvetnoy blv. 2 Moscow, Russia Tel: anastasia@astashkevich.com URL: Anastasia Astashkevich was born in 1984 in Moscow. In 2007, she graduated from the Moscow State Linguistic University (former Moscow Institute of Foreign Languages, named after M. Torez) Faculty of Law and Translation. In 2008, she finished her MBA course at the International University of Moscow. In 2013, she graduated from the University of Liverpool, where she obtained a Master s degree in International Business Law (LL.M.). Currently, Anastasia is finishing her Ph.D. research at Moscow State Academy of Law, named after O.E. Kutafin. Anastasia started her career in one of the Russian pipe trading companies in 2003 (Pipe Trading House LLC). In 2004, she was transferred to another similar company in the same role, where she dealt mostly with corporate law and contract law issues. In 2007, Anastasia worked as a legal counsel in one of the leading pipe engineering companies, Pipe Innovation Technologies LLC. The company has a long-term relationship with Gazprom, and supplies pipes of large diameter for major pipeline construction projects. In 2012, Anastasia was appointed Adviser of the CEO on legal issues. In December 2014, she successfully passed the qualification exam at the Chamber of Attorneys of the city of Moscow, and was granted the licence of Attorney-at-Law. At the beginning of 2015, Anastasia joined the Bureau of Attorneys Chaadaev, Kheyfets and Partners as the Head of the International Law practice, before becoming a founding partner of Astashkevich and partners Attorneys at Law in December Russia Astashkevich and partners Attorneys at Law was established in The partners of the firm have a long legal experience and are highly qualified in international cases and arbitration and antitrust, and are frequent participants in major international legal events. Since the firm first began, it has provided legal advice in the areas of tax, banking and finance, oil and gas, manufacture, aviation, the metallurgical sphere and others. The firm s clients comprise huge corporations and private clients who appreciate tailor-made decisions and a special strategic approach, which is a competitive advantage of the firm. Private clients are provided with legal expertise for the structuring of their family funds and establishment of family offices. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

145 Chapter 27 Singapore Tan Xeauwei Allen & Gledhill LLP Melissa Mak 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 Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) ( RECJA ) Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) ( REFJA ) Maintenance Orders (Reciprocal Enforcement) Act (Cap 169, 1985 Rev Ed) ( MOREA ) Choice of Court Agreements Act 2016 ( CCAA ) 2 General Regime Relevant Jurisdiction(s) United Kingdom, Australia, New Zealand, Sri Lanka, Malaysia, Pakistan, Hong Kong (for judgments obtained up until 30 June 1997), Windward Islands, Brunei Darussalam, Papua New Guinea, India (except the state of Jammu and Kashmir) Hong Kong Special Administrative Region of the People s Republic of China (for judgments on or after 1 July 1997) ( HKSAR ) New Zealand, United Kingdom, Manitoba, HKSAR and Australia Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom, Mexico Corresponding Section Below Section 3 Section 3 Question 2.6 and section 3 Question 2.6 and section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? Outside any applicable statutory regime, 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 a payment. As this is an original action commenced in Singapore, the judgment creditor must establish the Singapore court s jurisdiction 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 in respect of claims brought to enforce any judgment. Once a judgment is obtained from the Singapore court, it may be enforced. The modes of execution include writs of seizure and sale, garnishee orders and applications for examination of judgment debtors. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? To be enforceable at common law, a foreign judgment must be from a court of competent jurisdiction (in the conflict of laws sense) in the foreign country, final and conclusive on the merits by the law of that country and for a fixed or ascertainable sum of money. As for the recognition of a foreign judgment, the requirements are the same as that for enforcement, except that there is no requirement for the judgment to be for a fixed or ascertainable sum of money. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 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 of a judgment does not entitle it to enforcement per se. Recognition is, however, a prerequisite to enforcement. Typically, recognition is used as a bar to 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. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Under the common law, the party seeking recognition and enforcement would have to commence a fresh action for the ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

146 Allen & Gledhill LLP Singapore judgment debt. This would require service of the originating process (a Writ of Summons and Statement of Claim) on the judgment creditor. 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 judgment (i.e., to obviate the need for a full trial). A judgment that may be registered 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 RECJA has been refused, or the Singapore court orders otherwise. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? Where recognition or enforcement of a foreign judgment is sought under the common law, and assuming the requirements set out in question 2.2 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. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? With regard to (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. 2.8 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? 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 requirements 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. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? A foreign judgment that purports to apply the laws of Singapore is still a judgment of a foreign court. The normal rules applicable to the recognition and/or enforcement of foreign judgments will apply Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No. There is only one uniform system of law that applies across Singapore What is the relevant limitation period to recognise and enforce a foreign judgment? Singapore 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 commercial 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, intellectual property and anti-trust matters are also excluded. (b) The MOREA provides a statutory basis for the reciprocal enforcement of maintenance orders in Singapore. 2.7 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? With regard to (a), if there are two conflicting judgments between the parties relating to the same issue, the general rule would be that the first in time prevails and 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. 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 judgment. 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 pecuniary 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 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 registration 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 the date of the ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

147 Allen & Gledhill LLP Singapore Singapore last judgment given in any appeal proceedings. Under the CCAA, an application for the recognition and enforcement of a judgment may be made at any time, as long as the foreign judgment has effect and is enforceable in the State of origin. 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? RECJA The judgment must be issued by a superior court and be a judgment 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 enforceable 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. REFJA The Act applies to any judgment or order given or made by a superior court (as specified by an order of the Minister published in the Government Gazette), in any civil proceedings, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party. The judgment must be final and conclusive as between the parties, and 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 it is subject to appeal. The REFJA does not apply to any judgment which may be recognised or enforced under the CCAA. CCAA The 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 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 ( Contracting 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 allocation 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. MOREA The Singapore court may register a foreign maintenance order made by a court in a reciprocating country. A maintenance 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; (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 has died, funeral expenses. 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? 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 registration 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 judgment can or has been registered. However, such foreign judgment 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. 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. RECJA/REFJA An application to register a judgment under the RECJA or 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. CCAA An 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

148 Allen & Gledhill LLP Singapore the foreign judgment, and a certified copy of the exclusive choice of court agreement applicable to the relevant 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 proceedings 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. MOREA A 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). 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? RECJA Registration may be refused on the following grounds: (a) the foreign court acted without jurisdiction; (b) the judgment debtor did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction 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) an appeal is pending in respect of the judgment, or the judgment debtor is entitled and intends to appeal; or (f) the judgment was in respect of a cause of action which the Singapore court would not recognise for public policy reasons. REFJA Registration must be set aside if: (a) the foreign court had no jurisdiction; (b) 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, notwithstanding that process may have been duly served on him in accordance with the laws of the foreign country; (c) the judgment had been obtained by fraud; (d) enforcement of the judgment would be contrary to the public policy of Singapore; or (e) the rights under the judgment were not vested in the person seeking registration under the Act. In addition, registration may be set aside if the matter in the dispute in the proceedings, which forms the subject of the registered judgment, is the subject of a prior final and conclusive judgment by another court having jurisdiction over the matter. CCAA The 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 notification 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 and/or enforcement of the foreign judgment is 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 judgment 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 judgment 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; (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) the foreign judgment awards damages in excess of compensation for the actual loss or harm suffered. MOREA The registration of a foreign maintenance order will be cancelled if the original foreign 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 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 court will apply Singapore law, which allows for the revocation of a maintenance order if the order was based on any misrepresentation or mistake of fact, or if there have been any material change in circumstances since the order was made. Singapore ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

149 Allen & Gledhill LLP Singapore 4 Enforcement 5 Other Matters Singapore 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? The usual methods of enforcement applicable to a judgment issued by the Singapore court will apply: (a) issuance of writs of seizure and sale for the seizure and sale of immovable and movable (including securities such as shares and debentures) properties; (b) examination of the judgment debtor on his property; (c) 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) 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 winding up (against companies) proceedings, 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 payee. 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. The CCAA significantly expands the scope of the statutory enforcement and recognition regime under Singapore law to include a number of civil law jurisdictions (in particular, EU Member States). The impact of the CCAA is, however, likely to be felt after a transitional period. The Act, which implements the Convention, came into force on 1 October 2016 and only applies to judgments arising from claims that are the subject of an exclusive choice of court agreement in favour of another Contracting State if the agreement was entered into before the Convention entered into force in that Contracting State. 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? Under the RECJA, REFJA and CCAA, execution cannot be levied until the expiry of the time period limited for the judgment debtor to apply to set aside registration or the order granting enforcement. If there is a real risk that the judgment debtor s assets may be moved out of the jurisdiction, the judgment creditor may consider applying for a Mareva injunction ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

150 Allen & Gledhill LLP Singapore Tan Xeauwei Allen & Gledhill LLP One Marina Boulevard #28-00 Singapore Melissa Mak Allen & Gledhill LLP One Marina Boulevard #28-00 Singapore Tel: URL: Xeauwei s practice encompasses international arbitration and civil litigation. She has substantial experience in acting in banking disputes, shareholders disputes, trust and property disputes and commodities disputes. She also represents and advises clients on disputes in respect of information technology projects. Xeauwei is effectively bilingual, and regularly advises and acts in matters involving Chinese entities. Xeauwei has been recognised for her work in The Legal 500 Asia Pacific Xeauwei graduated from the National University of Singapore with an LL.B. (Hons) degree and passed the Singapore Bar examinations ranked in the top 10 of her year s cohort. Xeauwei was seconded to Essex Court Chambers in 2008/2009 where she worked with leading English Queen s Counsel on a range of major commercial litigation and international arbitration disputes in London. Tel: melissa.mak@allenandgledhill.com URL: Melissa is a Senior Associate in the Allen & Gledhill Litigation practice. She has acted in a range of disputes before the Singapore courts, including banking claims, shareholder and trust disputes, and employment matters. Prior to joining Allen & Gledhill, Melissa was a Justices Law Clerk and Assistant Registrar at the Supreme Court of Singapore. Melissa graduated from the University of Cambridge with a B.A. in 2009, and holds a BCL from the University of Oxford and an LL.M. from Harvard University. She was called to the Singapore Bar in Singapore Allen & Gledhill LLP, established in 1902, is one of the largest law firms in Singapore and South-east Asia. We provide legal services to a wide range of premier clients, including local and multinational corporations and financial institutions. An award-winning full-service commercial law firm, we are consistently ranked as a market leader in Singapore for every major practice area, having been involved in numerous challenging, complex and significant deals. Our Partners are specialists in their areas of practice and many are widely recognised as leading legal experts by clients and peers. Our network comprises Rahmat Lim & Partners, our Malaysian associate firm in Kuala Lumpur, as well as our local offices in Yangon, Myanmar and Vientiane, Laos. The firms are staffed by local lawyers familiar with the distinctive business environment, laws, regulations and practices in the respective jurisdictions. With more than 400 lawyers across South-east Asia and our close collaboration with leading law firms regionally and internationally, we are able to ensure our clients with multi-jurisdictional interests an integrated and seamless legal service. Our experience allows us to take on an effective lead counsel or project manager role in cross-border transactions. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

151 Chapter 28 South Africa Jonathan Ripley-Evans Cliffe Dekker Hofmeyr Fiorella Noriega Del Valle 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 The Enforcement of Foreign Civil Judgments Act 32 of 1998 ( EFCJ Act ) Relevant Jurisdiction(s) To date, the EFCJ Act has only been made applicable to Namibia Corresponding Section Below Section 3 Common Law All countries Section 2 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? 1. As a general principle, the common law governs the recognition and enforcement of all foreign civil judgments. 2. Although the EFCJ Act provides a statutory framework for the recognition and enforcement of foreign civil judgments in South Africa, this act only applies to certain countries designated by the Minister of Justice and Constitutional Development. To date, the Minister has only designated Namibia for this purpose. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? 1. In terms of the common law, the following requirements must be met in order for the foreign judgment to be recognised and enforceable in South Africa: 1.1 The foreign court must have had jurisdiction to entertain the case, as determined in accordance with the principles of South African Private International Law. This requirement will vary, depending on the legal issues involved In regard to claims relating to property, international jurisdiction will be present if the property was situated within the foreign court s area of jurisdiction The possible grounds for international jurisdiction in other civil matters have been authoritatively stated by the Supreme Court of Appeal as being: domicile; habitual residence; or submission. 1.2 The judgment must be final in its effect and must not have become superannuated (stale) It is important to note that this requirement will still be satisfied if the judgment is subject to an appeal, but not if the order is only interim by nature. 1.3 The recognition and enforcement of the foreign judgment must not be contrary to South African public policy. In other words, the minimum standards of justice must have been observed by the foreign court Whether a judgment is against South African public policy depends largely on the facts of each case and considerations would include: whether reasonable notice of the proceedings was given to affected persons (such as the defendant); the defendant s ability to have presented his/her/its case; and the impartiality of the court or tribunal Importantly, our courts have held that the mere reason that a judgment has been made by a foreign court, on a basis not recognised in South Africa, does not mean that the judgment is contrary to public policy, and as such, it would be wrong to refuse to enforce such a foreign order merely because it is unknown in South Africa. It would first need to be determined whether the unknown principle is unconscionable when considered against the background of the laws of South Africa. 1.4 The judgment must not have been obtained by fraudulent means. 1.5 The judgment must not involve the enforcement of a penal or revenue law of the foreign State. 1.6 The enforcement must not be precluded by the provisions of the Protection of Business Act 99 of 1978, as amended ( PBA ) The PBA states that the consent of the Minister of Economic Affairs must be obtained before a civil judgment relating to any act or transaction connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership to any matter or material, of whatever nature, whether within, outside into or from the Republic, may be enforced. It has been confirmed by our Supreme Court of Appeal that matter or material constitutes raw materials or substances from which physical things are made and not a manufactured thing ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

152 Cliffe Dekker Hofmeyr South Africa Section 1D of the PBA prohibits the enforcement of a civil judgment (irrespective of whether the Minister has given his consent) if that civil judgment arises from any act or transaction referred to in paragraph above, and if it is connected with any liability which arises from any bodily injury of any person resulting directly or indirectly from the consumption or use of or exposure to any natural resource of the Republic unless the same liability would have arisen under the law of the Republic Furthermore, no foreign judgment (to which the PBA applies) in respect of multiple or punitive damages can be recognised or enforced in South Africa. In this regard, the PBA defines multiple or punitive damages as that part of the amount of damages awarded which exceeds the amount determined by a South African court as compensation for the damage or loss actually sustained Despite its seemingly broad ambit, South African courts have been slow to give effect to the literal wording of the PBA, which has been interpreted restrictively. 2. If the aforementioned requirements are met, a local court may give an order recognising the judgment under the common law. 3. Under the EFCJ, a judgment obtained in a designated country (Namibia) is to meet the requirements set out in section 5 of the act, which largely conform with the common law requirements set out above, in order to be enforced. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 1. In South Africa, when one speaks of the recognition of a foreign judgment, one usually refers to a process whereby a court recognises and takes cognisance of the existence of a foreign judgment which has been raised as a defence (normally res judicata). In these circumstances, there is usually no need for the court to grant any form of enforcement order. 2. Regarding the enforcement of a foreign judgment, a South African court is required first to recognise the foreign judgment which is then enforced by means of a South African Court order (should the necessary requirements be met). 3. Simply put, a foreign judgment only recognised by a South African court is not automatically enforceable (which would require a separate enforcement order). An order declaring a judgment enforceable in South Africa would, however, be duly recognised within the Republic. 4. It is important, when bringing an action or application, to determine which South African court has jurisdiction to hear the matter, based on the principles of South African law. In this regard, our courts must be satisfied that there is a valid ratio jurisdictiones (dealt with below) before it will hear a matter. 5. A certified copy of the judgment must be annexed to the summons, together with a due and proper translation (by a sworn translator) if the judgment is in a language other than English. 6. The application or action will need to be served on all interested parties. If the defendant or respondent is resident outside of South Africa, it will need to be served on him/her/it by way of edictal citation which will require that an ex parte application first be brought seeking leave to serve notice of the proceedings in another country. 7. The manner in which a judgment is ultimately enforced also depends on the subject matter of the order. If, for example, it is a claim sounding in money, once the South African enforcement order has been granted, a writ of execution will be issued in terms of which the Sheriff may be ordered to proceed with execution against the debtor s assets. This would entail the attachment and removal of the debtor s assets, and the subsequent sale thereof by way of public auction so as to realise value. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 1. The recognition and enforcement of a foreign judgment can be challenged on the basis that it does not comply with the requirements set out in paragraph 1 of question 2.2 above. 2. The challenge could be made by either opposing the application or action, or alternatively by bringing rescission proceedings to court if the order enforcing the judgment had already been obtained, for example, without due notice to relevant parties. 3. The most common ground for a court s refusal to enforce a foreign judgment is based on the fact that such a judgment offends the laws of natural justice. It must, however, be stated that it is rather unusual for a South African court to refuse to enforce a foreign civil judgment. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? South Africa 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 1. A foreign judgment is regarded as a separate cause of action in terms of which proceedings can be brought. In terms of the common law, there is no prescribed procedure as to how this should be done. 2. In South Africa, proceedings can be instituted by way of application (where no dispute of fact is envisaged) or action (where a material dispute of fact is envisaged and a trial is required). Action proceedings are brought by way of summons and will culminate in a trial, where oral evidence is led. Application proceedings are brought by way of affidavit and are determined on the papers before the court. 3. South African courts also permit the institution of proceedings to enforce foreign monetary judgments, by way of provisional sentence summons, which is a shortened, hybrid action, a procedure that is utilised in order to obtain the provisional payment of a liquid sum of money. This can be found in the PBA (i.e. foreign judgments relating to raw materials) and is discussed in paragraph 1.6 of question 2.2 above. 2.7 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? (a) Conflicting local judgment between the parties on the same issue 1. As far as we are aware, our courts have never had to pronounce on this issue. 2. It is, however, suggested that the South African courts would refuse to recognise the foreign judgment based on public policy grounds as a contrary ruling may for example encourage forum shopping and this may undermine the jurisdiction of local courts. This may also have an effect ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

153 Cliffe Dekker Hofmeyr South Africa South Africa on the question of sovereignty (as the South African courts would be called upon to defer to a foreign jurisdiction in circumstances where local courts have already determined the matter finally). This will in all likelihood be a question of public policy. 3. A reference to clause 5(1)(g) of the EFCJ may be instructive in interpreting a question of where a foreign judgment was handed down on a date after the date on which the local judgment was handed down. In such circumstances, our courts permit the setting aside of the registration of a foreign judgment and as such would in all likelihood adopt a similar attitude for foreign judgments obtained after a local judgment has been handed down for matters falling outside the ambit of the EFCJ. (b) Local proceedings pending between the parties 1. A judgment of a foreign court having jurisdiction over the same matter would entitle a party to the local proceedings to plead the defence of res judicata and a local court is unlikely to entertain the hearing of the local proceedings. 2.8 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? 1. It has been held that South African courts will not go into the merits of the case, which have been adjudicated on by the foreign court and will not attempt to set aside its findings of fact or law. 2. As such, as long as the requirements set out above are met (and most importantly, the requirement relating to public policy), the judgment will be recognised and enforced. 3. The defence of res judicata is only available to a defendant in circumstances where both the cause of action (factual and legal basis) and the parties are the same. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? As set out above, South African courts will not go into the merits of the case and as long as the common law requirements are met (including the requirement relating to public policy) the judgment will be recognised and enforced Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No, the common law is equally applicable to all provinces. 3. Whether the debt has prescribed is thus determined in accordance with the principles of private international law and conflict of laws. In South Africa, prescription in terms of the lex fori (South African law) is a matter of substance (and not procedure), thus the law of the country where the judgment was handed down is applicable when determining the time periods for prescription. 4. However, there are instances where a gap arises, such as where the judgment originates in England. In England, prescription is regarded as procedural, thus the lex causae also cannot apply as it regulates only matters of substance (and a South African court will not apply foreign rules of procedure in a matter to be adjudicated upon by it). It has been held that in such an instance, South African law should be applied. 5. In this regard, the Prescription Act states that other debts (a word which is widely interpreted and which would include foreign judgments) prescribe after three years. 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? 1. In terms of the EFCJ Act, the foreign judgment will be capable of recognition and enforcement in South Africa as long as: it has been handed down in a country which has been designated by the Minister of Justice; the judgment sounds in money; and it was handed down by a court as defined in the EFCJ Act, which is limited to the Supreme Court, High Court or any district or regional Magistrate s Court of the designated country. 2. The EFCJ Act is not applicable to foreign judgments: given or made by any court on appeal from a judgment or order of a court other than a court as defined in [the EFCJ Act] ; or for the payment of any tax or charge of a like nature or of any fine or other penalty, or for the periodical payment of sums of money towards the maintenance of any person. 3. The Act does not state that there is a monetary limit to the judgment which can be registered. 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? 2.11 What is the relevant limitation period to recognise and enforce a foreign judgment? 1. In South Africa, time limitation periods are regulated by the Prescription Act. 2. The Prescription Act provides that any judgment debt will prescribe in 30 (thirty) years. However, it has been held that a foreign judgment is not included in the definition of a judgment debt. This is due to the fact that a foreign judgment merely constitutes a cause of action and is not directly enforceable in South Africa. As such, a foreign judgment cannot, on the linguistic approach of the relevant section in the Prescription Act, be regarded as a judgment debt. 1. Please see the response to question 2.3 above with regard to the approach of the courts when applying the common law. 2. The EFCJ does not provide for the recognition of foreign judgments and only references the enforcement thereof. 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. 1. The EFCJ Act provides that in order to recognise the judgment it must: be certified by the court of the designated country as being a true copy of the judgment; and ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

154 Cliffe Dekker Hofmeyr South Africa be lodged with the clerk of the Magistrates Court in the district where: the person against whom a judgment in question was given resides, carries on business or is employed or owns any movable or immovable property; any juristic person against which the judgment was given has its registered office, or its principal place of business; or any partnership against which the judgment was given has its business premises or any member thereof resides. 2. Once the judgment has been registered: the clerk of the court will issue a notice directed to the judgment debtor, informing him or her of the registration; and the judgment creditor must serve the notice on the judgment debtor, in accordance with the manner prescribed in the rules of court. 3. The judgment debt, in the registered judgment, must be expressed in the currency of South Africa, calculated at the rate of exchange prevailing at the date of the judgment. 4. Section 4 of the EFCJ Act provides that whenever a foreign judgment is registered, it shall have the same effect as a civil judgment of the court where it has been registered. 5. However, the judgment can only be executed after the expiration of 21 days after service of the abovementioned notice on the judgment debtor, or until any application to have the registration of the judgment set aside has been disposed of. 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? 1. In terms of the EFCJ Act, the registration of a foreign judgment can be challenged by the judgment debtor and set aside if the Magistrates court, at which the judgment was registered, is satisfied that one of the following grounds exist: the judgment was registered in contravention of any provision of the EFCJ Act; the court of the designated country had no jurisdiction in the circumstances of the case; the judgment debtor did not receive notice of the foreign proceedings in which the judgment was given, as prescribed by the law of the designated country; if no notice of proceedings is prescribed by the designated country, the judgment debtor did not receive reasonable notice of the foreign proceedings to enable him or her to defend the foreign proceedings, and he or she did not appear; the judgment was obtained by fraud; the enforcement of the foreign judgment would be contrary to public policy in South Africa; the certified copy of the foreign judgment which was lodged in terms of the EFCJ Act, was lodged at the request of a person other than the judgment creditor; the matter in dispute in the foreign proceedings had, prior to the date of the judgment, been the subject of a final judgment in civil proceedings by a court of competent jurisdiction; the judgment has been set aside by a court of competent jurisdiction; the judgment has become prescribed under either the law of South Africa or of the designated country; the judgment has been wholly satisfied; the judgment has been partly satisfied, to the extent in which it has been so satisfied; and the judgment is a judgment or order which, in terms of any law, may not be recognised or enforced in South Africa. 2. We are not aware of any reported case law which has interrogated these grounds. 3. The challenge to the registration is made by the judgment debtor, by way of application, and must be made within 21 days after the service of the notice (referred to above) on it. 4. A judgment debtor may also apply to the court at which the foreign judgment is registered, for the execution of the judgment to be postponed. This may be granted, on such conditions as the court may deem fit, if it is satisfied that: an appeal against the foreign judgment is pending in a court of competent jurisdiction; or the judgment debtor is entitled and intends to appeal against the judgment to a court of competent jurisdiction. 5. However, until such time as application is made in terms of paragraph 4, the registered judgment is deemed to be final. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? 1. In regard to claims sounding in money, claims for eviction or claims for restitution, the Sheriff of the court can be instructed (on the strength of the court order) to seize assets or evict tenants. If the claim sounds in money, the Sheriff will attempt to realise the claim by selling the judgment debtor s attached assets on auction. 2. In the event that the judgment debtor does not comply with the court order, application can be made for the judgment debtor to be held in contempt of court, which could lead to imprisonment. However, this is not applicable if the judgment debtor is unable to comply with a court order requiring it to pay a civil debt. 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. 1. A recent decision has been handed down by the Western Cape High Court which re-emphasises the principles pertaining to an objection to the recognition of a foreign judgment on the basis that it offends against public policy. 2. The judgment Danielson v Human 2017 (1) SA 141 (WCC) was handed down in the Western Cape High Court and dealt with: whether the provisions of the PBA applied to the recognition and enforcement of the foreign judgment; and whether the judgment contained a punitive element which made its recognition contrary to South African public policy. 3. Briefly, the judgment was one for punitive damages, which was granted in the United States against two South African respondents, as a result of their breach of an American statute. 4. Importantly, the court reemphasised that it was not its function to go into the merits of the case adjudicated upon South Africa ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

155 Cliffe Dekker Hofmeyr South Africa South Africa by the foreign court or to attempt to review or set aside its findings of fact or law. 5. In regard to the argument that the PBA was applicable, the court disagreed and followed the trend of interpreting the PBA restrictively. It held that the act or transaction giving rise to the applicant s case in the USA was based on a contract concerning the application of the certain technology. Although the technology may have had its foundation in raw materials, the dispute centred around provisions pertaining to licensing rights in respect of the technology. 6. In regard to the public policy argument, the court reiterated that it would be wrong, in principle, to refuse to enforce a foreign order on a basis not recognised in South Africa merely because it is unknown to South Africa. The court held that it would need to scrutinise the facts of each particular case in order to determine whether the award was unconscionable or contrary to public policy. 7. After interrogating the award, the court concluded that the damages were not strictly punitive in the sense that their purpose was to punish the respondent, but that they in fact were awarded in order to fully compensate the applicant for his actual loss suffered. As such, the award was not contrary to public policy and was duly enforced. 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? 1. It is important to bear in mind, when bringing an action or application to recognise a foreign judgment, that a court in South Africa will only hear a matter if there is some link between the territory within which it operates and the parties or the facts, i.e. rationes jurisdictionis, as it must have jurisdiction to enforce the judgment. 2. These links have been specifically enumerated by South African courts and must be present before a court can hear a matter; they are as follows: The defendant is domiciled or resident in South Africa. The cause of action arose in South Africa. The subject matter of the action is situated in South Africa. 3. If the defendant is resident in South Africa then there will be no difficulty in respect of the South African court s jurisdiction. 4. However, the following illustrates the problematic nature of establishing a ratio jurisdictionis when enforcing a foreign judgment against a foreign defendant, whose assets are located in South Africa: The defendant is domiciled or resident in South Africa: in regard to a foreign company, case law has held that an external or foreign company, despite being registered in South Africa and despite having a registered address in the country, will not be deemed to be resident in South Africa. The cause of action arose in South Africa: although there is no case law on this topic, it is arguable by a defendant or respondent that the cause of action, which is the order of the foreign court, did not arise in South Africa. The subject matter of the action is situated in South Africa: there may be scope to argue that the subject matter of the action in enforcement proceedings is actually the defendant s South African assets, which are within the jurisdiction of the court. However, the argument is not without risk in that the subject matter of any action or application would, strictly speaking, be the foreign civil judgment which the plaintiff or applicant is seeking to recognise. 5. Although it is also possible to establish jurisdiction by bringing an application to attach the assets of a foreign defendant or respondent which are located in South Africa, there is case law which indicates that this route is not available to a foreign plaintiff or applicant. The situation is further aggravated by the fact that submission to the jurisdiction of a South African court will not entitle the court to assume jurisdiction when the plaintiff and the defendant are both foreigners. 6. In light of the local rules pertaining to jurisdiction, it seems that it may be difficult for a High Court in South Africa to entertain proceedings for the authorisation of a foreign court order sounding in money against a foreign defendant in South Africa, where the proceedings have been brought by a foreign plaintiff under the common law. 7. Although this difficulty has not been faced head-on before, our Supreme Court of Appeal has held that exigencies of international trade and commerce require that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto. It may be that, when faced with this conundrum, South African courts will adopt a more practical and less stringent approach. 8. It is also important to always bear the PBA in mind when seeking to enforce foreign judgments in South Africa ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

156 Cliffe Dekker Hofmeyr South Africa Jonathan Ripley-Evans Cliffe Dekker Hofmeyr 1 Protea Place Sandown, Sandton, 2196 South Africa Tel: jonathan.ripleyevans@cdhlegal.com URL: Jonathan Ripley-Evans is a director in our Dispute Resolution practice. He has experience in both domestic and international arbitration, mediation and general commercial litigation. Jonathan is an AFSA accredited mediator and arbitrator and is a member of the Chartered Institute of Arbitrators. Career Jonathan began his career in 2009 as a candidate attorney at Cliffe Dekker Hofmeyr. He was appointed as an associate in January In 2016 he was appointed as a director. Education BCom (Law), Rand Afrikaans University. LL.B., University of Johannesburg. LL.M., (German comparative civil practice) Universitaet des Saarlandes (UdS) Saarland, Germany. Year of admission as an attorney: Admitted as a Notary Public in AFSA Advanced ADR Course Memberships Member of the Chartered Institute of Arbitrators. Member of the Africa Group of the China-Africa Joint Arbitration Centre (CAJAC) Johannesburg. Law Society of the Northern Provinces. Fiorella Noriega Del Valle Cliffe Dekker Hofmeyr 1 Protea Place Sandown, Sandton, 2196 South Africa Tel: fiorella.noriega@cdhlegal.com URL: Fiorella Noriega Del Valle joined Cliffe Dekker Hofmeyr as a candidate attorney in 2013 and was appointed as an associate in Education LL.B., University of Witwatersrand (Wits). Year of admission as an attorney: Year of admission as a Notary Public: Experience Fiorella is part of a team which specialises in various aspects of commercial litigation. General litigation. Experience in cross-border dispute resolution (specifically in Africa). Experience in arbitrations, mediations, settlement negotiations and alternative dispute resolution. Experience in proceedings against director/s for purposes of having those directors declared delinquent. Experience in instituting and pursuing civil proceedings for the recovery of funds which have been fraudulently misappropriated. Experience in proceedings involving commercial property transactions. Experience in instituting and defending proceedings in the Supreme Court of Appeal and Constitutional Court. South Africa Cliffe Dekker Hofmeyr (CDH) is a full-service law firm one of the largest business law firms in South Africa, with more than 350 lawyers and a track record spanning 163 years. We are able to provide experienced legal support and an authentic knowledge-based and cost-effective legal service for clients looking to do business in key markets across Africa. Our Africa practice brings together the resources and expertise of leading business law firms across the continent that have direct experience acting for governments, state agencies and multinational organisations. This combined experience across the continent produces an extensive African capability. We also partner with other professional disciplines such as audit, business consulting or corporate finance disciplines to provide a seamless and integrated solution for projects that have a multi-disciplinary dimension. We focus on a number of key sectors which are active and thriving in Africa, including mining and minerals, telecommunications, energy, oil and gas, banking and finance, projects and infrastructure, hospitality and leisure and arbitration. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

157 Chapter 29 Spain Alfredo Guerrero King & Wood Mallesons Fernando Badenes 1 Country Finder 2 General Regime 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. 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? Applicable Law/ Statutory Regime EU regulations Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 ( Lugano Convention ) New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 ( NY Convention ) European Convention on International Commercial Arbitration 1961 ( Geneva Convention ) Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1965 ( Washington Convention ) Bilateral treaties Act 29/2015, of 30 July, on international legal cooperation on civil matters ( Legal Cooperation Act ) Relevant Jurisdictions All countries within the EU Switzerland, Norway and Iceland All countries signatory to the Convention All countries signatory to the Convention All countries signatory to the Convention Countries with whom Spain has signed a bilateral treaty on enforcement (for instance, Colombia, El Salvador, Israel, Mexico and Tunisia) All countries not part of any multilateral or bilateral convention Corresponding Section Below Please see chapter 2 for more details Section 3 Section 3 Section 3 Section 3 Section 3 Section 2 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. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Firstly, note that, save some exceptions (pursuant to certain international 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. 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 not have 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 not have 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 recognition 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. In addition, please note that 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, recognition or enforcement are only available provided ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

158 King & Wood Mallesons Spain 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 described in the EU chapter in this guide. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Recognition and enforcement show differences. 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 relevant 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. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. In general, the exequatur procedure described under question 2.2 will take place (save the provisions contained in international treaties where this procedure is not necessary) and the judgment creditor will file a claim seeking the recognition and subsequent enforcement of the decision. 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 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, subsequently, 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 separate 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 agreement and the document verifying its notification to the parties is requested); (ii) the power of attorney; and (iii) any other documents 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 measures aimed to localise the assets of the judgment debtor. Finally, once the assets have been identified they will be allocated (either directly of after being sold) to the judgment creditor. Please note that in case of opposition to the enforcement of the foreign judgment, the ruling deciding on such opposition 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. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 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 2.2. In relation to enforcement, 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 considered 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 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 historically 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. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? In general, aside from the European Regulations concerning specific subject matters, it is not foreseen that any particular legal framework applies. 2.7 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? 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. 2.8 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? 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 Spain ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

159 King & Wood Mallesons Spain Spain above in question 2.7, if the foreign judgment is irreconcilable to a Spanish judgment, it will not be recognised pursuant to the Legal Cooperation Act. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? As stated in question 2.8, 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 themselves) amounted to a breach of public policy Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. Enforcement in Spain takes place identically throughout the whole territory What is the relevant limitation period to recognise and enforce a foreign judgment? 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 (judgment of the Supreme Court 4838/2014, dated 16 October 2014). 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? Find below the answers depending upon the specific regime: a) 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 judgments 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 enforcement of a judgment. b) NY Convention: The Convention is applicable to any arbitral 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 certified 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 official or sworn translation. In addition, pursuant to Article V, recognition and enforcement 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 arbitration, 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; (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. c) Geneva Convention: This Convention is applicable to controversies arising from commercial international transactions. 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. d) 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 judgment 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 2.5 apply. The limitation period would be five years, as stated in question 2.11 above. 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? 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 2.3 above. 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. For 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 could commence automatically. These proceedings are described in question 2.4 above ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

160 King & Wood Mallesons Spain 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 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 procedure set forth by the civil procedural framework for judgments rendered by foreign courts. 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? In this sense, please note that no revision on the merits is possible for either the European Regulations or for the arbitration 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 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, registration within the Property or Commercial Registry of the claim, prohibition 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 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. There have not been any noteworthy legal developments in the last 12 months. On 20 August 2015, Act 29/2015 entered into force, reforming the available legal framework for those foreign judgments that were not rendered under any international treaty. In this sense, one of the main differences between this new regime and the older is, amongst others, that reciprocity is no longer required and that it is only foreseen as a cause to refuse enforcement in very exceptional cases. Spain 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? 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. 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? It is important to meet at the outset all the legal requirements set out in the relevant regulation (including any minor procedural 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 sometimes the lack of the necessary knowledge of the process by the competent Spanish Court, which can lead to significant delays. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

161 King & Wood Mallesons Spain Alfredo Guerrero King & Wood Mallesons C/ Goya, 6, 4ª planta C.P , Madrid Spain Fernando Badenes King & Wood Mallesons C/ Goya, 6, 4ª planta C.P , Madrid Spain Spain Tel: URL: Tel: URL: Alfredo Guerrero is 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. 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 construction agreements. He has also a depth of practice in proceedings under controversy in the application of Public and Private International Law. Finally, he also has wide expertise in advising on criminal proceedings regarding white-collar crimes committed by directors and shareholders. 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 thorough knowledge of the law and the markets in which they operate. We provide partner-led, integrated advice to help our clients reach their commercial goals. Our robust track record of winning for our clients means that clients who have started with us, stay with us. Many in fact have been 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 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

162 Chapter 30 Switzerland Saverio Lembo Bär & Karrer Ltd. Aurélie Conrad Hari 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 Treaty between the Swiss Confederation and the Principality of Liechtenstein on the recognition and enforcement of judgments and awards, dated 25 April 1968 Treaty between Switzerland and the Republic of Austria on the recognition and enforcement of judgments, dated 16 December 1960 Treaty between Switzerland and Italy on the recognition and enforcement of judgments, dated 3 January 1933 Treaty between the Swiss Confederation and the German Reich on the recognition and enforcement of judgments and arbitral awards, dated 2 November 1929 Treaty between Switzerland and Spain on the reciprocal enforcement of judgments or decisions in civil and commercial matters of 19 November 1896 Treaty between Switzerland and the Czech Republic on the reciprocal enforcement of judgments of 21 December 1926 Treaty between Switzerland and Sweden on the recognition and enforcement of judgments and arbitral awards, dated 15 January 1936 Relevant Jurisdiction(s) Switzerland and Liechtenstein Switzerland and Austria Corresponding Section Below Section 3 Section 3 Switzerland and Italy Section 3 Switzerland and Germany Switzerland and Spain Switzerland and the Czech Republic Switzerland and Sweden Section 3 Section 3 Section 3 Section 3 Applicable Law/Statutory Regime Treaty between Switzerland and Belgium on the reciprocal enforcement of judgments and arbitral awards of 29 April 1959 Hague Convention for the protection of cultural property in the event of armed conflict of 14 May 1954 (amended on 15 April 2015) European convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children of 20 May 1980 Convention on the recognition of divorces and legal separations of 1 June 1970 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, dated 30 October 2007 (revised Lugano Convention) Relevant Jurisdiction(s) Switzerland and Belgium Corresponding Section Below Section States parties Section 3 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, Portugal, Romania, Serbia, Slovakia, Spain, Switzerland, Turkey, Ukraine, United Kingdom Albania, Aruba, Australia, China, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Hong Kong, Italy, Luxembourg, Moldova, Netherlands, Norway, Poland, Portugal, Slovakia, Sweden, Switzerland, United Kingdom European Community, Denmark, Iceland, Norway and Switzerland See EU Chapter Section 3 Section 3 ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

163 Bär & Karrer Ltd. Switzerland Switzerland Applicable Law/Statutory Regime New York Convention on the Recognition and enforcement of Foreign Arbitral Awards 1958 Swiss Private International Law Act (PILA) Swiss Civil Procedural Code (CPC) Swiss Debt Enforcement and Bankruptcy Act (DEBA) 2 General Regime Relevant Jurisdiction(s) All countries signatory to the Convention All countries to which none of the above specific conventions apply All countries to which none of the above specific conventions apply All countries to which none of the above specific conventions apply Corresponding Section Below Section 3 Section 2 Section 2 Section 2 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 fundamental principles of the Swiss conception of procedural 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 and 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 Lugano Convention (see question 3.1 below), the PILA is silent on the question of the recognition and enforcement of interlocutory orders ( mesures provisoires ) and there is no clear and uniform practice by the Swiss courts on this matter. 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? Under Swiss law, in the absence of an applicable international legal instrument (e.g. the revised Lugano Convention 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 insolvency (Art 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 enforcement of foreign decisions, pecuniary 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. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Under Swiss law, in principle, a foreign decision is considered to be any decision made by a judicial authority acting de jure imperi. It is irrelevant whether this authority is judicial, administrative or even religious. According to the general provisions under 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 Article 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): 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 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 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 res judicata effect. When recognition is assessed by the court as a prejudicial question in the context, for example, of an application for enforcement 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 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. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Recognition of foreign decisions is governed by the PILA and the Swiss Civil Procedural Code (CPC). These statutes provide for several different procedures 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 enforceability of the foreign decision, without applying for its enforcement (Art. 28 PILA). 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 application 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 Swiss Federal Debt Enforcement and Bankruptcy Act (DEBA), and subsidiarily, the CPC ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

164 Bär & Karrer Ltd. Switzerland Enforcement of any other claim is directly submitted to the CPC (Arts 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 judgment should also be provided in order to document the enforceability, even though the production of such certificate is not a legal requirement; and c) in case of a default judgment, an official document establishing 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 proceedings, which are cheaper and quicker than the ordinary proceedings. These proceedings are quicker mainly because parties need to prove their case by way of documentary evidences (physical 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 only in writing, 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, first to the Cantonal Appeal Court and second, to the Swiss Federal Tribunal. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 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 favouring recognition as much as possible. In order for the latter to be refused, the violation of Swiss public policy must be gross. On a final note, to protect itself before the launch of any enforcement 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 revised Lugano Convention 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. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? No matter the subject matter, the general provisions of PILA on recognition and enforcement of foreign decisions are applicable (Art. 25ff PILA) (see question 2.2 above). Yet, these general provisions 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, adoption, intellectual property, trusts, property law, etc. 2.7 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? Switzerland Recognition and enforcement proceedings are contradictory proceedings (unlike under the revised Lugano Convention where the first instance proceedings 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 challenge the enforcement of the foreign decision. As the latter would be recognised by Swiss courts, only facts which are posterior to the foreign judgment might be invoked by the parties. To challenge the enforcement of a pecuniary claim, the judgment 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 challenged 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-performance (Arts 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 (a) (b) Recognition and thus enforcement in Switzerland are denied 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 challenge 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 recognisable 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. 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 proceedings 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. 2.8 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? Under Swiss law, to grant recognition, a foreign decision cannot be reviewed on the merits (Art. 27 para. 3 PILA). Insofar as the ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

165 Bär & Karrer Ltd. Switzerland Switzerland 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 enforceable under the Swiss legal system. For the above-stated reasons, conflicting Swiss laws or precedents between third parties, if they do not belong to the realm of Swiss public policy applicable to the recognition and enforcement of foreign decisions, they will not be taken into account by the court. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? 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 2.8) Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 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 has still its own judicial and debt enforcement authorities. As a consequence, although the rules are the same, their application can deviate from one canton to another. This is typically the case in respect of the recognition 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 What is the relevant limitation period to recognise and enforce a foreign judgment? 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 is of 10 years from the date of the judgment (Art. 137 of the SCO). 3 Special Enforcement Regimes Applicable to Judgments from Certain Countries recent conventions, such as the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters dated 30 October 2007 (Lugano Convention), and thus lack relevancy. Also, in Switzerland, the most lenient regime should apply to questions of recognition and enforcement, which most often is the PILA or multilateral conventions. Therefore, these bilateral treaties, as well as conventions on specific matters, will not be discussed under this chapter. In Switzerland, the most relevant treaty in respect of recognition and enforcement obviously is the revised Lugano Convention, on which we will focus in this chapter. Under the revised Lugano Convention, 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 judgment is not final or an appeal has been filed against it (Art. 46 Lugano Convention). Since the first instance proceedings is 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 Lugano Convention). The grounds for refusal from which he can benefit are limited and are set out in Arts 34 and 35 of the Lugano Convention (Art. 45 para. 1 Lugano Convention). 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; and 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 Lugano Convention (Art. 22 Lugano Convention). Otherwise, the Swiss court may not review the jurisdiction of a member state. Finally, it is worth mentioning that, in order for a foreign judgment given in default of appearance to be declared enforceable under the Lugano Convention in Switzerland, the defendant must have been regularly 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 Lugano Convention). 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 severe than other Lugano Convention member states. 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? 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? All bilateral treaties set out in question 1.1 have, today, a limited scope in practice. Indeed, they are most often replaced by more Under the Lugano Convention, recognition is automatic and thus does not necessarily require any specific proceedings. Likewise, under PILA (see question 2.3), the creditor may directly file for enforcement without having the foreign decision recognised in a prior and separate proceedings ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

166 Bär & Karrer Ltd. Switzerland 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. If the judgment creditor wants to have his foreign judgment declared enforceable in Switzerland under the Lugano Convention, the following documents need to be produced (Art. 41, 53 and 54 Lugano Convention): a certified copy of the judgment; and a certificate of enforceability issued by the foreign court or authority using the standard form V of the Lugano Convention or any equivalent document. The foreign judgment needs to be enforceable in the country of origin, regardless of whether it is final or not. Swiss court might ask for the translation of the documents (Art. 55 para. 2 Lugano Convention). There is no analysis of the compatibility of the judgment with Swiss public policy or other grounds for refusal at this stage (Art. 41 Lugano Convention). Unlike the proceedings under PILA, the proceedings to declare a foreign judgment enforceable in Switzerland under the Lugano Convention are not adversarial; once the formalities stated above are completed, the judgment is immediately declared enforceable (Art. 41 Lugano Convention). 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 Lugano 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? Under the Lugano Convention, as under PILA, the merits of the case are not reviewed and thus merit-based defences cannot be raised (Art. 45 para. 2 Lugano Convention). As to the grounds for refusal, please refer to question Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? The enforcement methods available to the judgment creditor depends 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. Common methods of enforcement of a debt are: Ex parte attachment proceedings: this interim court remedy allows distraint of the assets of the debtor in order to guarantee 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, which 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 attachment, the debt must have a sufficient link with Switzerland or it must be based on an acknowledgment of indebtedness; the creditor has obtained a definitive or provisional certificate of loss against the debtor (insolvency 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 with the Debt Collection Office a request for the issuance of a Summons for Payment; the Debt Collection Office 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 recognition 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 CO). 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: the threat to a criminal sanction (a fine for contempt of court) or financial penalty; the use of direct constraint (coercive imprisonment is forbidden in Switzerland); the order of surrogate measures (a third person must perform the obligation in lieu of the debtor); and the conversion of the specific performance into a pecuniary performance (ultima ratio). The requesting party can also apply for interim measures that could be granted on an ex parte basis. 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. A consultation procedure has been open in Switzerland since October 2015 to amend the Swiss Private International Law Act regarding bankruptcy, and in particular to facilitate the recognition of foreign bankruptcy decisions. This project modernises the Swiss regimes and adopts some of the UNCITRAL propositions. Switzerland ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

167 Bär & Karrer Ltd. Switzerland Switzerland This modification would also abrogate old bilateral conventions of Switzerland regarding recognition and enforcement, which, in practice, are merely relevant nowadays. It is too early to assess whether the amendments will ever enter into force, and, if it does, when. 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? 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 especially 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 Lugano Convention. However, enforcement of foreign interim injunctions might be more difficult than to request such injunctions in Switzerland directly, pending the foreign outcome on the merits. Saverio Lembo Bär & Karrer Ltd. 12, quai de la Poste CH-1211 Geneva 11 Switzerland Tel: saverio.lembo@baerkarrer.ch URL: Aurélie Conrad Hari Bär & Karrer Ltd. 12, quai de la Poste CH-1211 Geneva 11 Switzerland Tel: aurelie.conradhari@baerkarrer.ch URL: Saverio Lembo heads Bär & Karrer s White Collar Crime practice group, as well as the Litigation and Arbitration Team of the Geneva office. He has extensive experience in white-collar crime, commercial and financial litigation, international judicial assistance (civil and criminal), arbitration 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. Saverio Lembo s practice also extends to pharmaceutical litigation, inheritance law, employment matters and enforcement of foreign judgments and awards. Aurélie Conrad Hari is a partner in the Dispute Resolution group of the Geneva office. Her practice focuses on domestic and international litigation, as well as arbitration. She regularly advises individuals and corporate entities in complex cross-border cases through all stages of the dispute including enforcement of arbitral awards or court decisions. Her practice encompasses banking, financial, commercial and corporate matters as well as trust and estate disputes. 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 transactions 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 experience 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 and 2014 The Legal 500 ( most recommended law firm in Switzerland ) and 2014 IFLR Awards. 2015, 2014, 2013, 2011, 2010 The Lawyer European Awards Citywealth Magic Circle Awards ( Law firm of the Year EMEA ) and 2014 Mergermarket European M&A Awards Citywealth International Financial Centre Awards and 2012 Chambers Awards ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

168 Chapter 31 Taiwan Hung Ou Yang Brain Trust International Law Firm Jia-Jun Fang 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 Taiwan is a civil law country. The Taiwan Code of Civil Procedure and the Taiwan Code of Enforcement are the applicable laws regarding enforcing judgments. 2 General Regime Relevant Jurisdiction(s) Taiwan, Republic of China Corresponding Section Below Section Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? The recognition and enforcement of a foreign judgment or ruling is governed by the Taiwan Code of Civil Procedure. Pursuant to Article 402 of the Taiwan Code of Civil Procedure, a final and binding judgment or ruling rendered by a foreign court will be recognised except in certain situations, one of which is violating due process of law or the public policy of Taiwan. After obtaining such a Taiwanese judgment regarding recognition, it can be enforced in the Taiwanese jurisdiction by filing a petition for enforcement in a Taiwanese court. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Formally the foreign judgment or ruling must be a final and binding judgment or ruling rendered by a foreign competent court. Substantially, it will be recognised by a Taiwan Civil Court or any other government agency as long as it does not fall into one of the exceptions listed by Article 402 of the Taiwan Code of Civil Procedure. There are four exceptions under Article 402. A foreign judgment or ruling will be recognised: 1. where the foreign court lacks jurisdiction pursuant to Taiwanese law; 2. where a default judgment is rendered against the losing defendant, except in the case where the notice or summons of the initiation of action had been legally served in a reasonable time in the foreign country or had been served through judicial assistance according to Taiwanese law; 3. where the performance ordered by such judgment or its litigation procedure is against Taiwanese public policy or morals; and 4. where there exists no mutual recognition between the foreign country and Taiwan. According to the Taiwan Code of Enforcement, a foreign judgment or ruling will be enforced if it does not meet any exceptions listed by Article 402 and if the Taiwanese court permits such foreign judgment to be enforced by a judgment of recognition. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Yes. The recognition of a foreign judgment or ruling may be conducted by any government agency. Once recognised, a foreign judgment or ruling is considered as effective. For example, the Household Registration Office of Taiwan can recognise a foreign judgment or ruling in relation to divorce so that the Household Registration Office of Taiwan can register a divorce with such foreign judgment even though there is no Taiwanese judgment. However, the enforcement of a foreign judgment or ruling can only be conducted by a court, and before enforcement a judgment of recognition by a Taiwanese court is required. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. First, an original copy of the foreign judgment or ruling and a certificate of its final and binding effects is required, both of which shall be issued by the competent foreign court. These documents shall be certified by a local notary public, local Ministry of Foreign Affairs, and Taiwanese Embassy or Taipei Economic and Culture Office ( TECO ) as relevant. Further, a complete Chinese translation of these documents to be certified by a Taiwanese notary public is required. After all these procedures, the foreign judgment or ruling with these certified documents may be submitted to a proper government agency for recognition. For example, a foreign divorce judgment or ruling would be submitted to the Household Registration office of Taiwan. If the purpose is to enforce a foreign judgment, an enforcement petition must be filed to a Taiwan competent court after obtaining a Taiwanese judgment of recognition. For example, if you need an attachment of a specific property owned by the debtor, you need to file an enforcement petition to a Taiwanese court where the property is located after the Taiwanese court renders a judgment of recognition. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

169 Brain Trust International Law Firm Taiwan 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? Taiwan A Taiwan court may not review the fact-findings and legal opinions of a foreign judgment or ruling in terms of recognition. However, the court would review the following four issues if challenged by the respondent: 1) whether the foreign court lacks jurisdiction pursuant to Taiwanese law; 2) whether a default judgment is rendered against the losing defendant, but the notice or summons of the initiation of action had been legally served in a reasonable time in the foreign country or had been served through judicial assistance provided under Taiwanese law; 3) whether the performance ordered by such judgment or its litigation procedure is against Taiwanese public policy or morals; and 4) whether there exists no mutual recognition between the foreign country and Taiwan. Most of the time, the respondent will challenge the foreign judgment or ruling in the Taiwanese court. Generally speaking, the Taiwanese court in charge of enforcement will not further review the four issues if a judgment of recognition is rendered, although the Taiwanese Code of Enforcement still states that the four issues shall be examined during the enforcement procedure. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? Generally the Taiwanese court will respect and recognise a final and binding foreign judgment or ruling unless the recognition and enforcement will cause a serious impact on or conflicts with local public policy. When a foreign judgment applies Taiwanese law, the court will recognise and enforce it, except in certain situations as provided under Article 402 of the Taiwan Code of Civil Procedure Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No, there are no differences What is the relevant limitation period to recognise and enforce a foreign judgment? Generally speaking, a foreign judgment will be challenged when it is enforced after 15 years starting from the date when the foreign judgment or ruling becomes final and binding. However, a foreign judgment may still be recognised by the Taiwanese government. There is no other legal framework for specific subject matters. Article 402 of the Taiwan Code of Civil Procedure applies to all kinds of foreign judgments or rulings in relation to recognition. 2.7 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? (a) (b) It is a rare situation where a foreign judgment is conflicting with a Taiwanese judgment between the parties relating to the same issue. Such foreign judgment may or may not be recognised by the Taiwanese court based on the conflicting performance pursuant to Article 402 of the Taiwan Code of Civil Procedure. If the court reasonably believes 1) that the foreign lawsuit is filed before the Taiwanese action, 2) that the foreign court s future judgment may be recognised in Taiwan, and 3) that it is not substantially inconvenient for the defendant to appear in front of the foreign country, the Taiwanese court by a ruling may stay the proceeding until the entry of a final and binding judgment in that foreign country, except where the parties have otherwise consented to have the subject matter adjudicated by the Taiwanese court. If the foreign court s judgment is filed after the Taiwanese lawsuit, the Taiwanese court may continue the proceedings. 2.8 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? The Taiwanese court may consider this situation a violation of local public policy, pursuant to Article 402 (3) of the Taiwan Code of Civil Procedure. The Taiwan court probably will deny recognition of the foreign judgment. Thus, it will also be unenforceable. 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 same applies as mentioned in section 2. There is no special enforcement regime in Taiwan. 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? The same applies as mentioned in section 2. There is no special enforcement regime in Taiwan. 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. The same applies as mentioned in section 2. There is no special enforcement regime in Taiwan. 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? The same applies as mentioned in section 2. There is no special enforcement regime in Taiwan ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

170 Brain Trust International Law Firm Taiwan 4 Enforcement 5 Other Matters 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Generally speaking, once a foreign judgment is recognised and enforced, the creditor may request a seizure order against all the assets of the debtor and the court will hold auctions to sell those assets to satisfy the debtor s rights in relation to monetary compensation. In addition, the debtor may be imprisoned for no more than three months for refusing to abide by the Taiwanese order if certain conditions are met. 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. Taiwanese courts recognise foreign judgments, rulings and arbitration awards from different foreign countries more and more. It is hard to find a Taiwanese judgment which denies recognition of foreign judgments or rulings. 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? Taiwan If the Taiwanese court also has jurisdiction over the client s subject matter, we would suggest our client file a petition for provisional seizure or a provisional injunction against all the assets of the debtor in case the debtor hides his assets. Freezing the debtor s assets can ensure future enforcement of a foreign judgment or ruling. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

171 Brain Trust International Law Firm Taiwan Hung Ou Yang Brain Trust International Law Firm 20F-1, No. 76, Sec. 2 Dunhua S. Rd., Taipei Taiwan (R.O.C.) Jia-Jun Fang Brain Trust International Law Firm 20F-1, No. 76, Sec. 2 Dunhua S. Rd., Taipei Taiwan (R.O.C.) Taiwan Tel: mark@btlaw.com.tw URL: Hung Ou Yang is the Managing Attorney of Brain Trust International Law Firm, and specialises in handling transnational legal disputes, business and white-collar crime, business litigations, and the negotiation and drafting of international agreements. Hung Ou Yang has successfully resolved many high-profile civil, criminal, and transnational disputes, including a complaint concerning pesticide-contaminated land leased by RT-Mart, disputes regarding the sales of target redemption forwards (TRFs) by Bank Sinopac, antidumping investigation in connection with CSC s carbon steel plate, transnational property litigations concerning an internationally-renowned scholar, and transnational money-laundering and embezzlement of assets of insurance companies. Hung Ou Yang also has a wealth of experience in domestic and overseas litigations and negotiations. Tel: nicolas@btlaw.com.tw URL: Jia-Jun Fang specialises primarily in legal translations of trial documents and contracts. In addition, his abundant experience in domestic litigations qualifies him to provide clients with strategies for conflict and dispute resolution. Brain Trust International Law Firm ( Brain Trust or the Firm ) provides the highest quality legal opinions on the most complex issues challenging clients, whether in litigation, transactions, or regulatory compliance. Our clients include individuals and business entities achieving success globally and locally. Many are at the top of their market fields, ranging from small companies to multinational corporations in all major industries, including manufacturing, consumer services, and technology, as well as government entities. This firm has always been dedicated in every respect to the pursuit of justice and ultimate victory in every case and for every client with which we have had the honour of working. The equality and justice of the judicial system stand both as the foundations upon which this firm is built, and also as the ideals that drive this firm to work tirelessly year after year to put into these ideals into practice in our unending efforts to achieve equality and justice for every one of our clients. Our firm values not only the learned consideration of experienced professionals; at the same time, we emphasise the ultimate satisfaction of our clients. We invest considerable time and effort into every case we take, and we value the participation of our clients. To ensure that our clients receive the service they deserve, our firm emphasises that laws around the world governing corporate liability are changing. Top multinational corporations understand that these continuous changes are both important and create hard-to-manage complexities. This firm has long been devoted to tracking and analysing these changes in order to provide the very best service to our clients ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

172 Chapter 32 United Arab Emirates Hamdan AlShamsi Lawyers & Legal Consultants Hamdan Alshamsi 1 Country Finder Applicable Law/ Statutory Regime Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention) (1958) Relevant Jurisdiction(s) Corresponding Section Below 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. All countries signatory to the Convention Section 2 Applicable Law/ Statutory Regime UAE Civil Procedures Law DIFC Courts Law (the RDC) Relevant Jurisdiction(s) Federal law of UAE (all seven emirates) Corresponding Section Below Section 2 DIFC Dubai Sections 1 3 DIFC Law No. 7 of 2005 DIFC Dubai Sections GCC Convention GCC countries Sections 1 3 Riyadh Arab Agreement for Judicial Cooperation (the Riyadh Convention) (1983) Convention on Judicial Assistance, Recognition and Enforcement of Judgments in Civil and Commercial Matters signed between France and the UAE (the Paris Convention) (1992) Agreement on Juridical Cooperation in Civil and Commercial Matters with India (2000) Legal and Judicial Cooperation Agreement between the UAE and the Arab Republic of Egypt (2000) Convention on Judicial Assistance in Civil and Commercial Matters between the United Arab Emirates and the Republic of China (PRC) (2004) Saudi Arabia, UAE, Jordan, Bahrain, Tunisia, Algeria, Djibouti, Sudan, Syria, Somalia, Iraq, Oman, Palestine, Qatar, Kuwait, Lebanon, Libya, Morocco, Yemen, Mauritania Sections 1 3 France, UAE Sections 1 3 India, UAE Sections 1 3 UAE, Egypt Sections 1 3 China, UAE Sections 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 are recognised and enforced under the laws of Civil Procedure of the UAE for the UAE civil courts, and the Dubai International Financial Centre (DIFC) Rules for the DIFC Courts. The Civil Procedures Law provides that a UAE court may enforce a foreign judgment so long as it conforms to certain conditions. The DIFC Courts rules require the judgment creditor to issue a Part 8 Claim form exhibiting a certified copy of the foreign judgment. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? In respect of the UAE civil courts, unless stated otherwise by another treaty or law dealing with a particular foreign country s judgments, a foreign award must satisfy the normal requirements of raising a case in the UAE courts, and, in addition: i) the subject matter of the dispute should not belong to the jurisdiction of the UAE courts and the foreign courts must have jurisdiction in accordance with their laws in respect of jurisdiction; ii) that the court that awarded the judgment were the correct forum to entertain the dispute in accordance with their laws; iii) that the parties to the dispute have been requested to appear and have correctly been given representation; iv) that the judgment is not subject to any appeal in the country it was issued in; and v) that it does not conflict with a judgment or order of the UAE courts previously issued and does not contradict the order public and morality/ethics of the UAE. In respect of the DIFC Courts, a certified copy of the judgment obtained from the originating court will usually be sufficient. If the judgment arises from a court in respect of which the DIFC Courts have a Memorandum of Guidance or Understanding, the understood procedures will be set out therein. It is also a requirement that the ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

173 Hamdan AlShamsi Lawyers & Legal Consultants United Arab Emirates United Arab Emirates foreign court had jurisdiction in respect of the matter. Absent a treaty, those requirements can be restrictive. Article 7(6) of Dubai Law No. 12 of 2004 (as amended) simply states that foreign judgments shall be enforced within the Centre in the manner prescribed in the Rules of the Courts. The Rules are closely modelled on the Civil Procedure Rules of England and Wales. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? In respect of the civil courts, the UAE civil laws provide that a party may seek an order to enforce a foreign judgment; therefore such an action may very well be considered recognition of a judgment before enforcing a judgment. Once an order of the UAE courts is awarded to the party to enforce a foreign judgment, the party may then open an execution file to enforce such an order of the UAE courts. Therefore, the legal effects of seeking a UAE civil court judgment to order execution of a foreign award will mean that the recognition of the foreign award inherently becomes an order of the UAE courts to direct the respondent to pay a certain sum or to perform the award recognised. A party may preserve its rights thereinafter with several actions and may use such judgment of the UAE courts in this respect. If a party would like to be afforded the opportunity to use the enforcement and execution powers of the UAE to recover his award, monies or seek performance in accordance with the recognised foreign judgment, the party would need to then enforce the foreign award after it has received a judgment of the UAE courts in order to enforce the foreign judgment. In respect of the DIFC Courts, this should not generally be necessary, particularly in Common Law courts, which follow a similar procedure. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. In respect of the UAE civil courts, to enforce a foreign judgment, a party must first seek an order from the UAE court to enforce a foreign judgment. The party will be required to register a case with the UAE court requesting the court to give an order recognising the foreign judgment. At this point the respondent will be summoned to appear before the court in the event there are any defences. The court will then give judgment. The judgment of the first instance courts can be appealed in the appeal courts and the appeal judgment may be appealed before the courts of cassation or supreme courts of the UAE. Thereafter, when the judgment is final and may not be appealed any further, the party can open an execution file to enforce the judgment. In respect of the DIFC Courts, the rules require the judgment creditor to issue a Part 8 Claim form exhibiting a certified copy of the foreign judgment and obtain an execution order in the DIFC Courts. 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? There are no rules that consider the type of subject matter of different foreign judgments apart from treaties which seek to deal with certain subject matters such as criminal matters or otherwise. Furthermore, there are certain subject matters relating to the sovereignty of the UAE where there are several rules in respect of such a foreign judgment. As a Court of the UAE, the same position will apply in respect of the DIFC. 2.7 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? The assumption must be made that the foreign judgment is final and binding. The Dubai courts will not enforce or recognise a judgment where there is a conflicting local judgment that was previously issued. For cases that are pending between parties before a UAE court and the UAE court has accepted jurisdiction, the recognition of a foreign award may be stopped or reversed if the UAE courts in a later final binding judgment accept jurisdiction. As a court of the UAE, the same position will apply in the DIFC. 2.8 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? The courts will not enforce a foreign judgment where there is a previous judgment issued by the UAE courts, and in the event there is a conflicting law which is considered ordre public, the foreign judgment will not be enforced. The rules around res judicata in UAE require the same subject, reason and parties; if the subject involves different parties or there seems to be a reason why an additional party has an interest and such party was not included in the previous court decision, then the foreign judgment may be admitted. As a court of the UAE, the same position will apply in the DIFC. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? As long as the judgment is not in conflict with UAE law and does not interfere with public morals/standards, then it may be enforced provided it satisfies the conditions set out in the Civil Procedures Law. As a court of the UAE, the same position will apply in the DIFC. 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? In respect of the civil courts, a foreign judgment will not be enforced in the UAE unless certain conditions indicated in the Civil Procedures Law are satisfied. The Dubai courts will not enforce judgments where they had original jurisdiction in the matter. The judgment may be challenged in the event the judgment breaches any of the rules stated in the UAE civil rules or other laws. In respect of the DIFC, the position will be the same Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There are different rules and procedures for recognition and enforcement in the UAE between the UAE civil courts and the DIFC. The former relies on the civil rules, and the latter on common law principles. Whilst both courts apply the treaties of the UAE, the civil courts apply a set of rules from the civil procedure rules of the UAE, and ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

174 Hamdan AlShamsi Lawyers & Legal Consultants United Arab Emirates the DIFC Courts apply a set of rules from the DIFC rules, which are closely modelled on the Civil Procedure Rules of England and Wales What is the relevant limitation period to recognise and enforce a foreign judgment? The UAE civil courts have a rule that they may not enforce awards that are more than 15 years old, with very limited exceptions. DIFC Courts have a six-year limitation period for proceedings in that jurisdiction. It is uncertain if the DIFC Courts would enforce their own limitation period or the limitation period of the jurisdiction in which the judgment debt arose. 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 UAE civil courts will recognise each and every judgment falling under the relevant treaty according to the rules of recognition in the treaty itself. It is also apparent that the UAE civil courts will turn away from the Civil Procedure Code for the recognition of judgments and rather focus on any requirements within the treaty for enforcement; in the absence of any particular requirements, the courts will recognise the judgments. Below are the requirements for each treaty with the assumption that the enforcement of criminal matters is beyond the scope of this guide: 1. Riyadh Convention: specifies that all treaty members recognise judgments made by courts of any contracting party of a civil matter, and shall implement them in their territory (as long as the courts of the contracting party which made the said judgments are competent under the provisions of the rules of the jurisdiction in force, and if the legal system of the requested party does not retain for its courts or the courts of another party the exclusive competence to make such judgments) when enforcing a judgment; facts of the judgment are also regarded. 2. GCC Convention: for a judgment to be enforced under this treaty, the following conditions apply: (a) the domicile or place of residence of the defendant at the time of filing the suit is located in the territory of that state; (b) the defendant has an office or a branch in the territory of such state at the time of filing the suit and if the dispute is related to performing the activity of such office or branch; (c) the contractual obligation is that the subject matter of the dispute is executed or should be executed in such state; (d) in the event of non-contractual liability, if the act or the subject matter of the liability occurred in the territory of such state; (e) the defendant expressly accepts the jurisdiction of the courts of such state by giving a domicile or under an agreement, provided the laws of such state do not prohibit such agreement; and (f) the defendant makes its defence on the merit of the suit without pleading that the court hearing the dispute lacks the jurisdiction to hear it. 3. Paris Convention: (a) Judgment must be issued by a specialised judicial authority; (b) laws that apply must be within the territory the defendant is summoned to; (c) the judgment should be final and binding, with no recourse to appeal; and (d) the judgment should not contradict the law. 4. India Convention: the India treaty provides certain conditions for the enforcement of foreign judgments, but only for matters other than capacity or status of a person or immovable property. The conditions are as follows: (a) the defendant has domicile or residence in the territory state at the time of institution of the suit; (b) at the time of suit, the defendant had a place or a branch of a commercial or industrial nature which benefitted the state; (c) there exists an express or implied agreement between the two parties; (d) in case of non-contractual liability the act is committed in the territory of that state; and (e) the defendant expressly or impliedly submitted to the jurisdiction of the courts of that state, and the law of that state allows such submissions. 5. New York Convention: requires parties to provide the following: (a) a duly authenticated original award; and (b) the original agreement between the parties. The award/agreement should be made in the original language of the country which the award is relied on, and certified by a sworn translator. 6. China Convention: the China Convention provides that citizens of either party in the territory of the other are given judicial protection; the same terms and conditions that are available to nationals should be enforced in either territory. These terms apply to persons who carry on business in either territory in accordance with the national law. 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? The regimes are enumerated separately below: 1. Paris Convention: the Paris Convention does not specify a difference in the legal effect of recognising and enforcing a foreign judgment. The procedure goes hand in hand a judgment will not be enforced before being recognised. 2. GCC Convention: provides no difference as to the legal effect of recognition/enforcement of a judgment. 3. Riyadh Convention: the Riyadh Convention obligates parties to make a request for recognising and implementing a judgment in the relevant court. The courts shall give regard to the facts of the judgment when making this decision, unless the judgment was made in absentia. 4. India Convention: the competent judicial authority of the state must take the necessary action to notify the decree in the same manner as it would have done had it been passed in its own territory; the order for execution may be made for the whole or part of the decree. 5. New York Convention: the Convention binds each contracting state to recognise arbitration awards and deem them binding for enforcement accordingly. United Arab Emirates ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

175 Hamdan AlShamsi Lawyers & Legal Consultants United Arab Emirates United Arab Emirates 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. The regimes are enumerated separately below: 1. GCC Convention: the procedure for executing a judgment shall be governed by the law of the state where the judgment is required to be executed, and the parties need to provide the following documents at the execution stage: (a) a true copy of the judgment with the signatures therein being attested by the competent authority; (b) a certificate that the judgment became final, unless the same is stated in the judgment; and (c) in the case of a judgment issued in absentia, a copy of the notification of the judgment, certified as a true copy of the original, or any other document that may confirm that the defendant was properly notified. 2. Riyadh Convention: a request must be made to the competent court by the contracting party. Once the request is approved, the enforcement process begins. 3. India Convention: the procedure for recognising and enforcing a foreign judgment will be subject to the laws of the requested state. 4. Paris Convention: the Paris Convention does not set out a specific procedure for the enforcement or recognition of a judgment, other than the conditions being satisfied. 5. New York Convention: an application must be made and certified by the courts of that state to recognise the judgment or award before the enforcement stage. 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? We will need to handle each regime separately below: 1. Paris Convention: a foreign judgment will not be recognised or enforced if the parties involved also have another ongoing issue which is based on the same matter and occurred in the same place. If there is res judicata, the judgment will neither be recognised nor enforced. 2. GCC Convention: An execution of a foreign judgment under this treaty can be challenged: (a) if the judgment is in violation of the provisions of the Islamic Shari a, the provisions of the Constitution or the public order in the state where the judgment is required to be executed; (b) if the judgment is issued in absence and the judgment debtor is not notified of the suit or the judgment properly; (c) if the dispute in respect of which the judgment is issued was the subject matter of a former judgment issued on the merit of the dispute as between the same litigants, is related to the same right in terms of its subject matter and grounds, and is issued in its final form in the state where the judgment is required to be executed or in any other member state which is a party to this agreement; (d) if the dispute in respect of which the judgment required to be executed is the subject matter of a suit currently heard by one of the courts of the state where the judgment is required to be executed between the same litigants, is related to the same right in terms of its subject matter and grounds, and such suit has been filed prior to the date of referring the dispute to the court of the state in which the judgment is issued; (e) if the judgment is issued against the Government of the state where the judgment is required to be executed or against one of its officials for acts done by such officials during or only due to the performance of the duties of their job; and (f) if the execution of the judgment is in conflict with the international conventions and protocols applicable in the state where such execution is required. 3. Riyadh Convention: recognition/enforcement of a judgment may be challenged on the following grounds: (a) if recognition would be in contradiction with the stipulations of the Islamic Shari a, the provisions of the constitution, public order, or the rules of conduct of the requested party; (b) if the judgment was passed in absentia without notifying the convicted party of the proceedings in an appropriate fashion that would enable him to defend himself; (c) if the law of the requested party applicable to legal representation of ineligible persons or persons of diminished eligibility were not taken into consideration; (d) if the dispute has given rise to another final judgment in the requested state, or in a third state and if the requested party has already recognised such a final judgment; and (e) if the dispute is also the subject of a case being heard by the courts of the requested party and the action has been brought before the courts of the requested party on a date preceding the presentation of the dispute to the court of the requesting party. 4. India Convention: challenges in enforcing a judgment under this treaty are: (a) if it is not conclusive and executable; (b) it is pronounced by a court of incompetent jurisdiction; (c) the merits of the case have not been considered; (d) the judgment was based on an incorrect view of international law, or a refusal to recognise the law in that jurisdiction; (e) the judgment proceedings are opposed to natural justice; (f) the proceedings were obtained by fraud; (g) the claim was founded on a breach of law in force, or contrary to the constitutional rules of that state; (h) the rules were contravened concerning legal representation; (i) the judgment was passed in absentia and the default party was not summoned; and (j) the judgment is res judicata, or another case is ongoing and involves the same parties and concerns the same cause of action. 5. New York Convention: recognition and enforcement of an award may be refused, at the request of the party whom it is invoked by, only if the party furnished to the competent authority where the recognition and enforcement is sought: (a) the parties agreement is deemed invalid under the law which the parties have subjected it to; (b) the party whom the award is invoked by was not given proper notice of the appointment, and was unable to present his case; (c) the award deals with that which was not contemplated within the terms of the submission to arbitration or beyond the scope; (d) the arbitral procedure was not in accordance with the agreement of the parties, or not in accordance with the law of that country; (e) the award has not yet become binding on the parties; (f) the competent authority in that country finds the subject matter not capable of settlement by arbitration; and (g) the recognition/enforcement of the award is contrary to the public policy of that country ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

176 Hamdan AlShamsi Lawyers & Legal Consultants United Arab Emirates 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? The enforcement tools that are available to a judge are freezing any and all assets of a debtor, placing a travel ban or a warrant, liquidating any assets or place on public auction, settling between the parties, issuing a warrant against the debtor, ordering specific performance, contacting third parties to cooperate in respect of a certain award or orders and many others. 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. There have been no new legal developments in the last 12 months except for the DIFC wills register, albeit this is not a change in the law on recognition of foreign awards; however the DIFC set up a register to register wills to ensure that the application of the foreign persons rules would apply to wills. Hamdan Alshamsi Hamdan AlShamsi Lawyers & Legal Consultants Office 1611, Al Manara Tower Al Abraj St., Business Bay, Dubai United Arab Emirates Tel: Fax: hamdan@alshamsilegal.com URL: With nearly a decade of successful litigation experience across the United Arab Emirates, Mr. Alshamsi has built one of Dubai s most reputable and respected law practices. He is widely regarded as a top litigator in the Dubai Courts, with extensive experience in corporate, banking and finance and insurance law. Mr. Alshamsi advises both local and international companies and governmental entities in cases involving complex litigation. He appears regularly before the Appeals Court and the Court of Cassation, as well as UAE s Federal Supreme Court. Mr. Alshamsi has been described as being very thorough and highly efficient Hamdan faced each challenge with strategy, professionalism and confidence which ultimately resulted in our successful outcome. It is no surprise that he has been recognised as one of the most influential young leaders in the Middle East and has received a young achiever award, amongst many others. United Arab Emirates 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? It is important that a client understands where he will be eventually enforcing the award and ensures that the lawyers of both jurisdictions work together to make the foreign judgment enforceable in the countries in which the party wishes to enforce them. Hamdan AlShamsi Lawyers & Legal Consultants was established in It has since become a name synonymous with success and is well known in the legal circuit. The success of the law firm is due to its specialisation in advising on commercial issues, insurance, due diligence, family law, intellectual property law, banking, companies law and other matters locally, and its dedication towards offering unparalleled, high-quality and culturally sensitive legal services, while adhering to the highest standards of integrity and excellence. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

177 Chapter 33 USA Chris Paparella Hughes Hubbard & Reed LLP Andrea Engels 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(s) Corresponding Section Below Common law All countries Sections 2, 4, and 5 Uniform Foreign Money Judgments Recognition Act (1962) Uniform Foreign- Country Money Judgments Recognition Act (2005) 2 General Regime All countries (adopted by a majority of U.S. states) All countries (adopted by a minority of U.S. states) Sections 2, 4, and 5 Sections 2, 4, and Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction? The United States is not a party to any treaty on the recognition and enforcement of foreign judgments, nor does it have federal laws governing foreign judgments. The applicable legal framework for enforcing foreign judgments in the United States is found in the local laws of the different states. This local law must be the first stop for any practitioner seeking recognition and enforcement of a foreign judgment in the U.S. The various state laws, however, share certain fundamental principles. Courts will, for example, generally accord foreign judgments substantial deference under the principle of comity, as expressed by the U.S. Supreme Court in Hilton v. Guyot, 159 U.S. 113 (1895). Further, most states, including New York, Florida, and Texas, have enacted some version of the Uniform Foreign Money Judgments Recognition Act of 1962 (the 1962 Uniform Act ), which governs the recognition of foreign money judgments. A number of states, including California and the District of Columbia, have enacted some version of the revised 2005 Uniform Foreign-Country Money Judgments Recognition Act (the 2005 Uniform Act ) (together with the 1962 Uniform Act, the Uniform Acts ). Even where individual state statutes are modelled on one of the Uniform Acts, such statutes can differ between states, as do different state courts interpretations of the statutes. It should be noted that arbitration awards receive more favourable treatment than foreign judgments because the United States is a party to the United Nations Convention and the Panama Convention on the recognition and enforcement of foreign arbitral awards. 2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Foreign money judgments subject to recognition and enforcement under the Uniform Acts must grant or deny recovery of a sum of money. Judgments granting declaratory or injunctive relief are excluded from coverage by the Uniform Acts, as are judgments for taxes, fines or other penalties, or judgments for support in matrimonial or family matters. See 1962 Uniform Act 1(2); 2005 Uniform Act 3(a) (b); see also N.Y. C.P.L.R. 5301(b); Cal. Civ. Proc. Code 1715(a) (b). The fact that a particular type of judgment is not covered by the Uniform Acts does not necessarily mean that such judgment is unenforceable, as discussed in question 2.6 below. Generally recognised rules of comity provide that a court will only recognise a final and valid foreign judgment. Pilkington Bros. P.L.C. v. AFG Indus. Inc., 581 F. Supp. 1039, 1045 (D. Del. 1984). Both Uniform Acts provide that a foreign judgment must also be: (i) final; (ii) conclusive; and (iii) enforceable in its country of origin. See 1962 Uniform Act 2; 2005 Uniform Act 3(a)(2); N.Y. C.P.L.R. 5302; Cal. Civ. Proc. Code 1715(a)(2); Fla. Stat (2015). Under the 1962 Uniform Act, a foreign judgment is final even if an appeal of the judgment is pending or the judgment is subject to appeal. See 1962 Uniform Act 2. However, as a practical matter, a U.S. court will often stay proceedings if there is an appeal pending in the country of origin. See, e.g., N.Y. C.P.L.R. 5302, 5306; Cal. Civ. Proc. Code 1720; Fla. Stat , (2015). A foreign money judgment is considered conclusive between the parties to the extent it grants or denies recovery of a sum of money. See, e.g., N.Y. C.P.L.R. 5303; Cal. Civ. Proc. Code 1715(a); Fla. Stat (2), (2015). To determine if a foreign judgment is enforceable in its home jurisdiction, a U.S. court will examine whether the judgment is capable of being enforced under the law of the country where the judgment was issued. See Sea Trade Maritime Corp. v. Coutsodontis, 21 N.Y.S. 3d 887, 887 (N.Y. App. Div. 2016); Soc y of Lloyd s v. Sumerel, No. 2:06-cv-329-FtM- 29DNF, 2007 WL , at *5 (M.D. Fla. July 20, 2007). The requisite form of a foreign judgment eligible for recognition varies from state to state. New York, for example, requires an authenticated copy of the foreign judgment and an English translation of the judgment accompanied by an affidavit by the ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

178 Hughes Hubbard & Reed LLP USA translator. See N.Y. C.P.L.R. 2101(b), 5402(a). Other formalities may apply depending on local state rules. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? foreign jurisdiction explaining that the judgment is authentic and final. See Fed. R. Civ. P. 44(a)(2) (requirements for authenticating a foreign record). Assuming that there are no disputes of material fact, the U.S. court will decide whether the foreign judgment may be recognised as a legal question (i.e., without a jury). The court recognises the foreign judgment by entering a local judgment on it. Recognition and enforcement are distinct concepts in U.S. practice. A party seeking to enforce a foreign judgment must first sue in federal or state court to have the judgment recognised in other words, converted into a U.S. judgment and thus considered res judicata (claim preclusive) with respect to other actions between the parties in the recognising jurisdiction. Once it is judicially recognised, a foreign judgment is enforceable as a domestic judgment, and is entitled to full faith and credit in other U.S. courts. See Nadd v. Le Credit Lyonnais, S.A., 804 So.2d 1226, (Fla. 2001). The judgment can be enforced against assets over which the enforcing court has jurisdiction. These are generally assets within the state. 2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. To recognise and enforce a foreign judgment, a U.S. court must generally have: (1) personal jurisdiction over the judgment debtor or jurisdiction over the judgment debtor s assets in the forum state; and (2) subject matter jurisdiction over the action. Although the precise formulation of the standard for personal jurisdiction varies from state to state, the touchstone for personal jurisdiction over a non-resident judgment debtor is whether the debtor has minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. See Int l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) (internal quotation marks omitted). In New York, a judgment creditor seeking recognition and enforcement of a foreign judgment does not need to establish personal jurisdiction over the judgment debtor, at least when the judgment debtor s assets are located in the state. See Lenchyshyn v. Pelko Electric Inc., 281 A.D.2d 42, 47 (N.Y. App. Div. 2001). Similarly, other states require personal jurisdiction over the judgment debtor or the debtor s property in order to recognise and enforce a foreign judgment in their state. See, e.g., Electrolines, Inc. v. Prudential Assurance Co., Ltd., 260 Mich. App. 144, 163 (Mich. Ct. App. 2003); Restatement (Third) of Foreign Relations Law 481 cmt. h (1987). Subject matter jurisdiction is mainly an issue in federal court because the federal courts have limited subject matter jurisdiction specified in federal law whereas the state courts have general subject matter jurisdiction. A party may only seek recognition of a foreign judgment in federal court if there is either diversity jurisdiction (i.e., the claim exceeds $75,000 and the parties are citizens of different states) or federal question jurisdiction (i.e., the claim arises under U.S. federal law). See 28 U.S.C Even if enforcement can be sought in federal court, local state law would apply to the substantive issues. Each state has its own procedures for recognising and enforcing foreign judgments. Generally, a party must either commence a new action seeking recognition or seek recognition through a counterclaim, cross-claim, or affirmative defence in a pending action. See, e.g., N.Y. C.P.L.R. 5303; Cal. Civ. Proc. Code Some states, like New York, allow a party to seek an expedited judgment recognising a foreign judgment. See N.Y. C.P.L.R The party must establish that the foreign judgment is final, conclusive, and enforceable in its country of origin; this is typically accomplished by presenting a certified copy of the foreign judgment, an official translation, and often a witness statement from a lawyer from the 2.5 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? A defendant can oppose the recognition of a foreign judgment by raising defences derived from the concept of comity. Under this principle, courts will not recognise foreign judgments where doing so would be prejudicial to the interests of the U.S., Int l Nutrition Co. v. Horphag Research Ltd., 257 F.3d 1324, 1329 (Fed. Cir. 2001), or where a foreign judgment was obtained in a manner that did not accord with the basics of due process[,] Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1410 (9th Cir. 1995). Due process in this context generally demands that the foreign court had personal jurisdiction over the defendant and that the defendant had notice and the opportunity to defend against the plaintiff s claims before an impartial tribunal. Hilton, 159 U.S. at ; Soc y of Lloyd s v. Reinhart, 402 F.3d 982, 993 (10th Cir. 2005). While U.S. courts do not require that the laws and procedures of the rendering nation be identical to those in the U.S., courts will look to ensure that the foreign court procedures are fundamentally fair. Soc y of Lloyd s v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000) (internal quotation marks omitted). Each state that has adopted a statutory version of one of the Uniform Acts has also adopted mandatory and discretionary grounds to refuse recognition of a foreign judgment. The grounds to refuse recognition vary by state, even in those states that have statutes based on the same Uniform Act. For example, New York courts must refuse to recognise a foreign judgment if: (i) the judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law; and/or (ii) the foreign court did not have personal jurisdiction over the defendant. N.Y. C.P.L.R. 5304(a). New York courts can also refuse to recognise a foreign judgment if they find: (1) a lack of subject matter jurisdiction by the rendering court; (2) inadequate notice to defendant; (3) fraud in obtaining the foreign court judgment; (4) the cause of action on which the judgment is based is repugnant to public policy; (5) the foreign judgment conflicts with another final and conclusive judgment; (6) the foreign court proceeding was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; (7) the foreign court was a seriously inconvenient forum for the trial of the action; or (8) the cause of action resulted in defamation judgment that did not afford the defendant the freedom of speech and press as provided under U.S. and state laws. N.Y. C.P.L.R. 5304(b). The party seeking to avoid recognition of the foreign judgment must show that there is an applicable ground for non-recognition. See 2005 Uniform Act 4(d). The party may raise such grounds as defences to a recognition action. U.S. courts are likely to deny recognition of a foreign judgment if it was rendered by a judicial system that failed to provide due process. See Int l Transactions, Ltd. v. Embotelladora Agral Regiomontana, S.A., 347 F.3d 589, (5th Cir. 2003). The courts will also deny recognition if the judgment violates U.S. public policy, although this standard is high and rarely met. Sarl Louis Feraud Int l v. Viewfinder, Inc., 489 F.3d 474, (2d Cir. 2007). A foreign judgment only violates public policy if it is directly contrary to a fundamental USA ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

179 Hughes Hubbard & Reed LLP USA USA U.S. policy, or violates the most basic notions of U.S. morality and justice. Sung Hwan Co., Ltd. v. Rite Aid Corp., 850 N.E. 2d 647, 650 (N.Y. 2006) (internal citation omitted). For example, a foreign judgment that impinges on an individual s freedom of religion, speech, press or assembly as outlined in the First Amendment of the U.S. Constitution may be found to be repugnant to U.S. public policy and therefore subject to non-recognition. In this regard, a New York state court refused to recognise an English libel judgment on the ground that doing so would impinge on the constitutionally guaranteed rights of freedom of speech and press. Bachchan v. India Abroad Publ n Inc., 154 Misc. 2d 228, 235 (N.Y. Sup. Ct. 1992). Counsel should consult the laws of the individual states as each state that has adopted a version of the Uniform Acts has varying mandatory and discretionary bases for non-recognition of a foreign judgment. Depending on the state, local proceedings that are pending between the parties can affect the treatment of a foreign judgment. Some states like New York and California allow parties seeking enforcement of foreign judgments in pending state actions to raise the issue as a counterclaim, cross-claim or affirmative defence seeking preclusive recognition. See N.Y. C.P.L.R. 5303; Cal. Civ. Proc. Code 1718(b). Other states like Texas require a party seeking enforcement of a foreign judgment to file an authenticated copy of the foreign money judgment with the court in lieu of commencing a separate action. See Tex. Civ. Prac. & Rem 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? 2.6 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? As noted in questions 2.1 and 2.2 above, the Uniform Acts apply specifically to foreign money judgments. The Uniform Acts do not apply to foreign judgments for taxes, fines, penalties or domestic relations. Because taxes, fines, and monetary penal judgments serve to raise revenue for public purposes and are generally considered to be matters of public law, they are outside of the scope of recognition and enforcement of judgments in private civil suits. See Restatement (Third) of Foreign Relations Law 483, n.3 (1987) (noting that [u]nless required to do so by treaty, no state enforces the penal judgments of other states ). As a general rule, the U.S. adheres to the concept that the courts of one nation will not enforce the penal laws of another nation. See Huntington v. Attrill, 146 US 657, (1892). Courts must determine whether the nature of a money judgment is remedial. If a money judgment is directed to a private individual, and does not stand to redress a public wrong, recognition can be sought in the U.S. See, e.g., Plata v. Darbun Enters., Inc., No. D062517, 2014 WL , at *5 (Cal. Ct. App. 2014). By contrast, while the Uniform Acts do not require recognition of domestic relations judgments, see, e.g., 2005 Uniform Act 3(b) (3), they do not prohibit recognition of such judgments. Domestic relations judgments may be recognised under common law principles of comity. Several federal statutes and international agreements also facilitate the recognition of domestic relations judgments across borders. These include the International Support Enforcement Act, 42 U.S.C. 659a (1996), the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. 2.7 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? In states that have enacted statutes modelled after either of the Uniform Acts, a court may decline to recognise a foreign judgment if it conflicts with another final and conclusive judgment. See, e.g., N.Y. C.P.L.R. 5304(b)(5). In general, the later of the two inconsistent judgments will be recognised by a U.S. court; however, courts have the discretion to recognise the earlier judgment or neither one. Restatement (Third) of Foreign Relations Law 482 cmt. g (1987). As discussed in question 2.5, there are several mandatory and discretionary bases for non-recognition of a foreign judgment under the Uniform Acts. If a foreign judgment conflicts with local U.S. law, the party seeking to prevent recognition may argue that it conflicts with U.S. public policy. However, as noted above, the courts apply a high standard to the public policy defence. A foreign judgment does not automatically offend U.S. public policy merely because it conflicts with local law. See Sarl Louis Feraud Int l, 489 F.3d at As discussed in questions 2.5 and 2.7, a party may challenge recognition of a foreign judgment if there is a conflicting final and conclusive judgment. See, e.g., N.Y. C.P.L.R. 5304(b)(5). The state statutes that include this discretionary basis for non-recognition do not specify whether only the same parties, or parties in privity with them, may raise this defence. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? The fact that the foreign court applied either U.S. federal law or state law when rendering its judgment would not result in the examination of the merits of the judgment by the court where recognition or enforcement is sought. This is true even if a party asserts that the foreign court incorrectly applied U.S. law Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. As discussed above in question 2.1, it is critical to evaluate the law of the state where recognition and enforcement are sought. Each U.S. jurisdiction has its own law on foreign judgments. Most states have adopted statutes that generally mirror one of the Uniform Acts but with various differences; some states continue to follow Hilton s common law approach. Each state s rules are different. For example, if the foreign court did not have subject matter jurisdiction over the dispute, the governing Florida and California statutes require denying recognition of the foreign judgment. See Fla. Stat. Ann (1)(c); Cal. Civ. Proc. Code 1716(b)(3). New York courts, by contrast, have the discretion to deny recognition on this basis but are not required to do so. See N.Y. C.P.L.R. 5304(b)(1). Florida courts and those of a few other states have the statutory discretion to refuse to recognise a foreign judgment if the foreign jurisdiction would not reciprocate by recognising a Florida judgment. See, e.g., Fla. Stat. Ann (2)(g). New York and California law do not include non-reciprocity as a statutory basis for non-recognition ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

180 Hughes Hubbard & Reed LLP USA 2.11 What is the relevant limitation period to recognise and enforce a foreign judgment? Each U.S. state has its own statutes of limitations. The 1962 Uniform Act does not contain a statute of limitations; the states that have adopted the 1962 Uniform Act apply either the state s general statute of limitations or the statute of limitations for the enforcement of domestic judgments. The 2005 Uniform Act has a statute of limitations providing that a party seeking recognition of a foreign judgment must sue within the earlier of the time during which the foreign judgment is effective in the foreign country or 15 years from the date that the foreign judgment becomes effective in the foreign country. Some states that have adopted the 2005 Uniform Act have adopted a different time limitation. For example, California requires that [a]n action to recognize a foreign-country judgment shall be commenced within the earlier of the time during which the foreigncountry judgment is effective in the foreign country or 10 years from the date that the foreign-country judgment became effective in the foreign country. Cal. Civ. Proc. Code 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? Code 1719(b); and Fla. Stat. Ann (5). In New York, for example, the methods available to enforce a judgment are set forth in New York s Civil Practice Law and Rules. These methods include enforcement devices such as: (1) the restraining notice, which can be served without court leave and can be used to freeze property while other devices are used to obtain it, N.Y. C.P.L.R. 5222; (2) subpoenas, which the judgment creditor can use to inquire into the existence and location of the judgment debtor s property, N.Y. C.P.L.R. 5224; (3) property execution, which can direct an authorised official like a sheriff or marshal to seize and sell the debtor s property and pay the judgment creditor out of the proceeds, N.Y. C.P.L.R. 5230; and (4) income execution, which allows the judgment creditor to reach up to 10% of the debtor s income, N.Y. C.P.L.R See generally N.Y. C.P.L.R. art. 52. Notably, New York law also provides for a turn-over order, which can require turn-over of a judgment debtor s assets held by a third party subject to the state s jurisdiction in some cases, even if the judgment debtor and its assets are located outside of the U.S. See N.Y. C.P.L.R. 5225; see also N.Y. C.P.L.R Many states exempt certain property of individual debtors from enforcement, often subject to a monetary cap. See, e.g., N.Y. C.P.L.R 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. USA This is not applicable in the U.S. See Section 2 above. 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? This is not applicable in the U.S. See Section 2 above. 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. This is not applicable in the U.S. See Section 2 above. 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? This is not applicable in the U.S. See Section 2 above. 4 Enforcement 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Recognition of a foreign judgment makes it enforceable like a domestic judgment. See, e.g., N.Y. C.P.L.R. 5303; Cal. Civ. Proc. As discussed in question 2.5 above, a defendant can oppose the recognition of a foreign judgment in certain circumstances. In New York, for example, the grounds for non-recognition are found in New York s version of the 1962 Uniform Act ( New York s Recognition Act ). See N.Y. C.P.L.R But a recent decision by the Second Circuit Court of Appeals has effectively expanded the legal bases for preventing the recognition and enforcement of a foreign judgment. See Chevron Corp. v. Donzinger, 833 F.3d 74 (2d Cir. 2016). In Chevron Corp. v. Donzinger, an Ecuadorian trial court had issued two $8.65 billion judgments against Chevron for causing environmental damage and personal injuries to a class of plaintiffs. Chevron subsequently commenced a lawsuit in the Southern District of New York seeking, among other things, a preliminary injunction prohibiting the enforcement of that Ecuadorian judgment globally, based on allegations that the named plaintiffs in the Ecuadorian action, along with their attorney, Steven Donziger, obtained the judgment through bribery, coercion, and fraud. The District Court granted Chevron s preliminary injunction, refusing to recognise the Ecuadorian judgment and forbidding enforcement anywhere in the world based on New York s Recognition Act. See Chevron Corp. v. Donziger, 768 F. Supp. 2d 581, (S.D.N.Y. 2011), vacated sub nom. Chevron Corp. v. Naranjo, No CV L, 2011 WL (2d Cir. Sept. 19, 2011), and rev d and remanded sub nom. Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012). On appeal, the Second Circuit Court reversed and vacated the injunction, holding that New York s Recognition Act while permitting certain defences against a judgment creditor s attempt to enforce a foreign judgment only permits a judgment debtor to challenge an enforcement action and does not authorise an affirmative attack on a foreign judgment. See Chevron Corp. v. Naranjo, 667 F.3d 232, 240 (2d Cir. 2012). ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

181 Hughes Hubbard & Reed LLP USA USA After the Second Circuit s decision, the case went back to the district court for trial. Chevron introduced evidence that Dozinger and others wrote the Ecuadorian judgment and bribed the judge to sign it. The district court held that this behaviour, along with numerous other fraudulent acts, constituted breaches of New York common law and of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act. See Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 567, (S.D.N.Y. 2014), aff d, 833 F.3d 74 (2d Cir. 2016). As a result, the court enjoined defendants from seeking to recognise or enforce the Ecuadorian judgment or from seeking to seize or attach any assets based on the judgment, in any United States court, going so far as to impose a constructive trust for Chevron s benefit on any property that Donziger may be able to obtain from outside of the U.S. that was traceable to the enforcement of the Ecuadorian judgment. The court made clear that it could not prevent actions initiated outside of the U.S., nor could it prevent those defendants over whom it did not have personal jurisdiction from taking such actions. Id. at 644. Plaintiffs appealed to the Second Circuit, which this time affirmed the district court s decision. Thus, Chevron Corp. v. Donziger has established that judgment debtors may now seek relief from foreign judgments based on U.S. common law and the RICO Act (and possibly other statutes beyond the Uniform Acts), so long as the court has jurisdiction over the parties. Furthermore, the case establishes that a judgment debtor may affirmatively initiate an action to prevent enforcement of a fraudulently obtained foreign judgment, instead of waiting for plaintiffs to seek enforcement. 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? If a judgment creditor has a choice of forum, it is important to evaluate each state s statutes and case law to determine which is most favourable to the creditor s prospects to have a foreign judgment recognised and enforced. For example, because Florida is one of a few states that includes reciprocity as a permissible ground for non-recognition (as discussed above in question 2.10), a judgment creditor may be advised to seek recognition in another state if the judgment at issue was rendered in a foreign jurisdiction that has a reputation of refusing to recognise and enforce U.S. judgments. It is also important to consider bringing a turn-over proceeding in New York, whereby a judgment creditor may seek assets from a judgment debtor that may be located outside of the U.S. but whose assets are held by a financial institution or other third party subject to personal jurisdiction in New York. Attention should also be given to the different rules regarding property exempt from judgment enforcement. Acknowledgment The authors gratefully acknowledge the assistance of Hagit Elul, Elizabeth Houghton, Ryan Kim, Apoorva Patel and Elizabeth Beitler in researching and drafting this chapter ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2017

182 Hughes Hubbard & Reed LLP USA Chris Paparella Hughes Hubbard & Reed LLP One Battery Park Plaza New York, NY USA Andrea Engels Hughes Hubbard & Reed LLP One Battery Park Plaza New York, NY USA Tel: URL: Tel: URL: USA Christopher Paparella concentrates on financial services litigation and international disputes. He has represented financial institution clients in federal and state court litigation and arbitration involving mortgagebacked securities, securities fraud, lender liability and foreign exchange transactions. He has also represented clients in international and domestic arbitrations in New York, London, Mexico City, Paris, Amsterdam and elsewhere. Chris has developed particular familiarity and skill in the energy and process industries, and has represented participants in offshore and onshore oil and gas production facilities, as well as a variety of downstream process plants and other facilities. Chris has been ranked by Chambers USA, Chambers Global and The Legal 500 as one of the leading international arbitration lawyers in the United States. Andrea Engels has advised and represented clients in a variety of international disputes before U.S. state and federal courts and in international arbitrations organised under all the major arbitration rules. Ms. Engels has handled high-stakes cases across sectors, including disputes involving construction and engineering, the energy sector, banking and securities, professional services, and art law. Hughes Hubbard & Reed LLP is a New York-based international law firm that has long been recognised for its litigation and arbitration achievements. We have broad experience in high-stakes trial and appellate matters throughout the United States and our international practice routinely advises clients across the globe on a wide range of cross-border disputes and investigations, including the enforcement of foreign judgments and arbitral awards in the U.S. With lawyers who hail from more than 20 countries and who speak more than 24 languages, we bring local language capability and cultural sensitivity to our clients matters. Further, in decades of working throughout the world including in more than 90 countries during the past two years we have identified and cultivated relationships with top practitioners and firms in numerous jurisdictions. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS