ICLG The International Comparative Legal Guide to:

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1 ICLG The International Comparative Legal Guide to: Enforcement of Foreign Judgments rd Edition A practical cross-border insight into the enforcement of foreign judgments Published by Global Legal Group, with contributions from: Allen & Gledhill (Myanmar) Co., Ltd. Allen & Gledhill LLP Archipel Bär & Karrer Ltd. Blake, Cassels & Graydon LLP Boga & Associates Bonn Steichen & Partners Brain Trust International Law Firm Chuo Sogo Law Office, P. C. Covington & Burling LLP Esenyel Partners Lawyers & Consultants Fichte & Co Gall GASSER PARTNER Attorneys at Law Gürlich & Co. Herbert Smith Freehills Germany LLP Herbert Smith Freehills South Africa LLP Jafa & Javali, Advocates Jones Day Konrad & Partners Legance Avvocati Associati Lex Navicus Concordia Linklaters LLP Matheson MinterEllison Montanios & Montanios LLC N-Advogados & CM Advogados Pinheiro Neto Advogados Polenak Law Firm Rahmat Lim & Partners Simonsen Vogt Wiig Stek TripleOKlaw Advocates LLP Williams & Connolly LLP

2 Chapter 26 Jack Yow Rahmat Lim & Partners Daphne Koo 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. 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 ). 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. Commonwealth countries. Corresponding Section Below Sections 2, 3 and 5. 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? The common law generally provides for the recognition and enforcement of a foreign judgment via the initiation of a fresh suit in court to enforce such judgment. Foreign monetary 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. 2.2 What constitutes a judgment capable of recognition and enforcement in your jurisdiction? A judgment capable of recognition and enforcement in has been outlined in REJA in its interpretation section as: a judgment or order given or made by a court in any civil proceedings; or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party; and except in relation to a country or territory outside the Commonwealth, it includes an award in proceedings in an arbitration if the award has, pursuant to the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place; and a judgment given in any court on appeal from a judgment given in the High Court shall be deemed to be a judgment given in the High Court and a judgment capable of recognition and enforcement in. The judgment must also satisfy the other requirements listed within REJA to ensure that the judgment is capable of being recognised and enforced. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

3 2.3 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. 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? The countries must be a country or territory within the Commonwealth; and which are further expressly specified and listed in the Acts, respectively. For example, PBA states that the Commonwealth includes any country which the Yang di-pertuan Agong may (by notification published in the Gazette) direct to be included among the countries to which the recognition and enforcement of foreign judgment applies. 2.5 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 n courts that such judgment gives rise to vested rights through a foreign judicial process. The recognition of a foreign judgment is an essential precursor to the enforcement of such judgment, but does not necessarily mean that such judgment will then be enforced in. For example, a foreign judgment may be relied upon as establishing a set of facts for the purpose of n proceedings, even if enforcement of the judgment is not sought. Enforcement of a foreign judgment on the other hand refers to the process by which the judgment may be executed or enforced in as though it were a n judgment (for example, by attaching the assets of a judgment debtor to satisfy a judgment debt). 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Insofar as the 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 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, 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 such as: stating the name, trade or business and usual or last known address of the judgment creditor and judgment debtor; and stating of 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 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 be issued 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 instance, execution on the judgment may not be levied until after such an application has been finally determined. 2.7 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) 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; e) the judgment was obtained by fraud; ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018

4 f) the enforcement of the judgment would be contrary to public policy; or g) the rights under the judgment are not vested in the person by whom the application for the registration was made. judgment. The common law enforcement, or registration under REJA, of a foreign judgment may only be challenged on the grounds set out in question 2.7 above. 2.8 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. 2.9 What is your court s approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties? Conflicting local judgment between the parties relating to the same issue A local judgment between parties relating to the same issue would amount to res judicata between the same parties. This is a form of estoppel against re-litigation of the same subject matter in. 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 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 the enforcement of the foreign judgment under common law or under REJA. If, however, enforcement of the foreign judgment by reason of such conflict is contrary to the public policy of, 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) 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 2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain. No, the rules and procedures outlined above apply throughout 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 2.3 and 2.6 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 in the Poor Relief (Ireland) Acts 1893 to 1914). b) The maintenance order must have been made by a court in a reciprocating country under MOFEA. c) A certified copy of the order would have to have been transmitted to the Minister charged with responsibility for the judiciary in, who would have had to send the same to the appropriate Local Court for registration in the prescribed manner (the Local Court for this purpose is defined as a Sessions Court or a Magistrate s Court having jurisdiction to try suits relating to maintenance of wives or children). PBA a) Two certified sealed copies of the grant of probate or letter of administration issued by a court from the relevant Commonwealth country. ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS

5 b) A list of the deceased s liabilities and assets in. c) A list of the beneficiaries of the deceased s estate. d) A certified true extract of the deceased s death certificate. e) A bond made by an administrator as a form of security. 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? 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 n courts before it may be enforced as though it were a local judgment. Actual enforcement of the judgment would be subject to the laws and rules relating to the specific enforcement procedure in question. For example, the rules relating to the enforcement of a judgment via a writ of seizure and sale would differ from the rules relating to garnishee proceedings. 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 Rules of Court 2012 ( 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, who is then required to forward the order to the Local Court in the district of the person against whom the order is made. The order is then registered, and has the same effect and force as if it was granted within the jurisdiction. Pursuant thereto, proceedings may be taken on the order, and the court in which the order was registered has the power to enforce the order. 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 application for the 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 as well as the list of the beneficiaries of the deceased s estate. The applicant must also furnish two certified sealed copies of the grant of probate or letter of administration and a certified true extract of the deceased s death certificate. An administrator must also make a bond as a form of security. The court must thereafter hold a hearing and once the court has granted the order for the resealing of the grant of probate, it must issue a Notice of Resealing to the original court by whom the grant was issued. At the point of resealing, the grant will have the same force and effect in 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? 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 n public policy; f) the rights under the judgment would be contrary to n public policy; or g) the rights under the judgment are not vested in the person who applied for the registration of the judgment. The setting aside of a registered judgment may be undertaken by way of an application to court, within the duration specified in the notice of registration of the foreign judgment. MOFEA There are no specific provisions allowing for a challenge to a maintenance order duly registered under MOFEA. Insofar as provisional orders made by the original court are concerned, the person against whom the order is made has a right to raise any defence which he might have raised in the original proceedings had he been a party thereto, but no other defence. PBA An order on an application for the re-sealing of probate or letters of administration will not be granted if, at the time of his death, the deceased was not domiciled within the jurisdiction of the court by which the grant was issued. The resealing is a matter of discretion, and the court may defer the hearing of, or even refuse the application in special circumstances (for example, if the will is wholly or mainly operative under lex domicile). 4 Enforcement 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; ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018

6 d) an application for a charging order in respect of shares held by the judgment debtor; or e) the initiation of bankruptcy or the winding-up of 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 n Int Trading Corp Sdn Bhd v RHB Bank [2016] 2 CLJ 717, the Federal Court (FC) set aside the High Court s (HC) order to enforce the Singapore High Court s (SHC) judgment of garnishee order nisi (GON). The Judgment Creditor (Appellant) sought for the GON against the garnishee (the Respondent Bank) on the monies in six fixed deposit accounts (FD). The FD was actually pledged with the Respondent Bank by way of a set-off letter by the Judgment Debtor (JD). In this case, the FC agreed, inter alia, with the Court of Appeal s finding that the HC placed undue importance on the SHC s judgment in granting the garnishee order absolute against the Respondent Bank. In so doing, the FC noted that the Respondent Bank was not even a party to the SHC suit between the Appellant and the JD and was therefore not bound by the findings made by the SHC that the JD s monies were held on trust for the Judgment Creditor. This is as the FC found that the Respondent Bank had taken all necessary steps in accordance with the procedural rules to dispute the GON during the show cause stage. 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 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 n 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

7 Jack Yow Rahmat Lim & Partners Suite Level 33 The Gardens North Tower Mid Valley City, Lingkaran Syed Putra Kuala Lumpur 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 them to the recovery of a multi-million ringgit facility from a publicly listed company; obtaining a favourable KLRCA arbitration award for a n subsidiary of a publicly 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. Daphne Koo Rahmat Lim & Partners Suite Level 33 The Gardens North Tower Mid Valley City, Lingkaran Syed Putra Kuala Lumpur Tel: daphne.koo@rahmatlim.com URL: Daphne is a Partner in the Arbitration, Litigation and Maritime & Aviation practices. Her areas of practice include corporate and commercial litigation, admiralty and maritime law and land reference proceedings. Daphne s experience includes, amongst other things, acting on behalf of leading commercial and financial institutions and publicly listed companies on court sanctioned capital reduction exercises and mergers, representing international shipping companies in shipping and admiralty matters, and acting for international and domestic companies on a diverse range of disputes. Daphne also undertakes advisory work and regularly appears at various levels of the n courts for hearings, trials and appeals. Rahmat Lim & Partners is an award-winning, full-service law firm in 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 n 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 Acquisition, and Corporate Real Estate practices are all ranked in international 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 2018

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