What are the rules governing enforcement of foreign judgments?
A plaintiff can obtain execution of a foreign judgment by moving an application in the District Court under section 44-A of the Civil Procedure Code. However, this option is available only if the foreign judgment is of a superior court of the United Kingdom or that of a reciprocating territory. The scope of this limitation is evident from a recent decision of the Supreme Court in PLD 2017 SC 95 where it held that a decree passed by a court of first instance of the United Arab Emirates could not be enforced in Pakistan under section 44A because it did not qualify as a superior court.
In the event that a foreign judgment does not fall within the scope of the foregoing section, a person may institute a suit under section 13 of the Civil Procedure Code which is “conclusive as to any matter” adjudicated between the parties. Resultantly, the judgment constitutes res judicata between the parties and its findings are therefore binding on the courts in Pakistan. This presumption of conclusiveness can be displaced however where:
- the court lacks jurisdiction
- the judgment does not correspond to the merits of the case
- the judgment is predicated over an incorrect view of international law, or a refusal to implement and recognise the law of Pakistan where applicable
- the proceedings are opposed to natural justice
- the judgment has been obtained by fraud.
Where this presumption has successfully been displaced, the plaintiff can file a fresh suit based on the original cause of action. In such a case, a full trial is conducted before a judgment can be pronounced. This option does not therefore involve the enforcement of a foreign judgment.
Generally, if there is a discrepancy between the provisions under the COCP and the regulations of the European Union (Regulation (EC) 44/2001 and subsequently Regulation (EU) 1215/2012) in relation to the enforcement of foreign judgements, the latter shall prevail and the provisions in the COCP shall only apply where they are not inconsistent with the provisions of such regulations or in matters not falling within the ambit of such regulations.
With respect to judgement delivered by a foreign court outside the EU, any judgment delivered by a competent court constituting a res judicata may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered except in the following circumstances:
a. if the judgment sought to be enforced may be set aside on any of the following grounds:
- where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party;
- where the sworn application was not served on the party cast;
- where any of the parties to the suit was under legal disability to sue or be sued, provided no plea there anent had been raised and determined;
- where the judgment was delivered by a court having no jurisdiction;
- where the judgment contains a wrong application of the law;
- where judgment was given on any matter not included in the demand;
- where judgment was given in excess of the demand;
- where the judgment is conflicting with a previous judgment given in a suit on the same subject-matter and between the same parties, and constituting a res judicata, provided no plea of res judicata had been raised and determined;
- where the judgment contains contradictory dispositions;
- where the judgment was based on evidence which, in a subsequent judgment, was declared to be false or which was so declared in a previous judgment but the party cast was not aware of such fact;
- where, after the judgment, some conclusive document was obtained, of which the party producing it had no knowledge, or which, with the means provided by law, he could not have produced, before the judgment;
- where the judgment was the effect of an error resulting from the proceedings or documents of the cause.
The judgment ordering the enforcement of another judgment delivered by a court outside Malta, upon being registered in the Public Registry Office, shall create as from the day of registration a hypothec in regard to the debt judicially acknowledged by the judgment the enforcement of which is ordered.
If a judgment has been obtained in a superior court of the UK, the judgment creditor can apply to the Malta Court of Appeal within 12 months (a longer period may be allowed by the Court of Appeal) to have the judgment registered in one of the superior courts in Malta (British Judgments (Reciprocal Enforcement) Act (Chapter 52, Laws of Malta)). On such an application, the Court will, at its discretion, order the judgment to be so registered. Reciprocal enforcement of maintenance orders is also provided for under the Maintenance Orders (Reciprocal Enforcement) Act 1974 (Chapter 242, Laws of Malta).
Foreign judgments within the ambit of the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (the “RECJA”) and the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (the “REFJA”) may be enforced in Singapore, in accordance with Order 67 of the ROC. Any person who wishes to wishes to enforce a foreign judgment pursuant to the foregoing rules must apply to have the judgment registered in the High Court, by way of an ex parte originating summons. Once registered, the foreign judgment may be enforced in Singapore as if it were a local judgment. Fresh proceedings need not be commenced for the purpose of enforcement.
Foreign judgments which do not fall within the ambit of the RECJA or the REFJA may nevertheless be enforced under the common law, provided that the judgment in question is: (i) in personam, final, conclusive and given by a court of competent jurisdiction; and (ii) for a definite sum of money. Such a judgment would be enforceable in Singapore unless it was procured by fraud, its enforcement would be contrary to public policy, or the proceedings in which it was obtained were contrary to natural justice.
The recognition and enforcement of foreign judgements is carried out under the relevant international treaty between the Russian Federation and the state where the judgement was made. In the absence of such treaty, the recognition and enforcement is performed on the grounds of reciprocity, i.e. if the courts of the respective foreign state recognize and enforce decisions of the Russian сourts. Even if the reciprocity cannot be established and verified, there are cases when foreign judgements have been recognised and enforced on the basis of the principle of international comity.
The court may refuse to recognise and enforce a foreign judgment only on limited grounds which relate primarily to procedural issues (for example, such as lack of due notification of the respondent, violation of the exclusive competence of Russian courts). In exceptional cases, the recognition and enforcement can be denied if a foreign judgment contradicts the Russian public policy.
According to the recent amendments, judgments that do not require enforcement (declaratory judgments) are recognised without any special proceedings if its recognition is provided by international treaty and Russian federal legislation. However, interested parties can file objections against recognition of such judgments with Russian courts within one month after they learn of the foreign judgment.
The recognition and enforcement of foreign judgments is first subject to EU regulations (mainly, the Recast Brussels Regulation). Moreover, other bilateral or multilateral treaties, the Spanish International Cooperation Law (or Ley 29/2015, de Cooperación Civil Internacional en materia Civil) and the Spanisch Civil Procedure Act have to be examined.
Please be advised that Indonesian Law does not recognize the enforceability of foreign court judgments in its jurisdiction. The only way to execute foreign judgements in Indonesia is to use the foreign decision as a legal basis/evidences of a new claim filed before the Indonesian courts.
Under domestic law, foreign judgments are recognised and enforced on the basis of sec. 328 ZPO. The general rule is that foreign judgments are enforced unless at least one of the following exceptions applies:
- The foreign court lacked jurisdiction (from the point of view of German law).
- The defendant who has not entered an appearance in the foreign 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 to allow him to defend himself.
- The foreign judgment is not compatible with a judgment delivered by a German court, or with an earlier judgment handed down abroad that is to be recognised, or if the proceedings on which such judgment is based are incompatible with proceedings that have become pending earlier in Germany.
- The recognition and enforcement of the judgment would violate the (procedural or substantive) German ordre public, i.e. the essential principles of German law, in particular the fundamental rights set out in the German constitution (Grundgesetz).
- Reciprocity is not warranted.
With respect to foreign judgments rendered by courts of EU Member States, the Brussels Ia Regulation applies in civil and commercial matters as defined in Art. 1. In principle, judgments given in an EU Member State shall be recognised in the other Member States without any special procedure being required (Art. 36 Brussels Ia Regulation). Recognition and enforcement of EU judgments can be refused only on the narrow grounds set forth in Art. 45 of the Brussels Ia Regulation.
The rules that govern the enforcement of foreign judgements in our jurisdiction, are provided for in the Commerce Code and the Federal Code of Civil Proceedings. To enforce a foreign judgement the following requirements must be fulfilled:
- The judgement must have been resolved in compliance with the procedural rules established under the local law;
- The judgement must not arise from in rem actions;
- The Court that issued the judgement must have had subject-matter jurisdiction in compliance with foreign regulations supported by the Mexican local regulations. The foreign Court will not have subject-matter jurisdiction when the documents that gave place to the foreign judgement established a clause of exclusive jurisdiction to Mexican Courts;
- The defendant must have been personally summoned and its right to heard in Court must have been ensured;
- The judgement must be final, not subject to further appeal;
- That a Mexican Court is not simultaneously resolving the same case;
- That the foreign judgement is not contrary to public order;
- The foreign judgement is dully apostilled.
Local Courts will only review the foreign judgement with regards to its authenticity (not regarding its substantial issues), and will determine if such foreign judgement can be enforced in Mexico.
Additionally, enforcement of foreign judgements in Mexico is also ruled by the treaties that our government has signed with other countries. Among others, the following treaties have been signed by the Mexican Government:
- The Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards;
- The Convention on Competence in the International Sphere for the Extraterritorial Validity of Foreign Judgments.
The main rules governing the enforcement of foreign judgments are included in the GCCP (Articles 905 and 780 therein). In principle, foreign judgements are declared enforceable by the Greek courts if they are enforceable according to the law of the court which has issued the decision and they do not oppose to bonos mores or to the public order.
However, where EU regulations or international conventions and bilateral treaties are applicable, the provisions of the GCCP are applied only to the extend that the relevant matter is not regulated therein. The sedes materiae on the enforcement of intra-EU judgments in Greece is the Brussels Recast Regulation (EU 1215/2012) “on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”.
Enforcement of foreign judgments may be awarded by Monegasque Courts if:
- It was rendered by a court having jurisdiction
- Rights of defence have been respected
- The enforcement of the foreign decision is not obviously contrary to public policy
- It is not contrary to a Court decision already rendered in Monaco
- A court case is not already pending between the same parties in the same matter in front of a Monegasque Court.
The claimant must file a specific document provided by law to support the enforcement claim such as an original copy of the foreign decision and an original document proving service of the said decision.
Under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319), the judgments of certain countries (including Australia, Belgium, Bermuda, Brunei, France, Germany, India, Israel, Italy, Malaysia, The Netherlands, New Zealand, Singapore and Sri Lanka) are capable of direct enforcement by registration. Once registered, the foreign judgment may be enforced in the same way as a judgment obtained in a court in Hong Kong.
The Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597), which provides a mechanism by which certain judgments made in Mainland China may be enforced in Hong Kong and Hong Kong judgments in Mainland China, came into operation on 1 August 2008. However, the scope of this legislation is quite limited. It only applies to judgments ordering money payments from certain PRC courts (Intermediate People’s Courts and higher or a recognised Basic People’s Court) that must arise from a ‘commercial agreement’ and must also be final and conclusive. The requirement for the agreement to be a commercial agreement prevents, for example, judgments arising from tortious acts, intellectual property infringements and product liability disputes from being registered. Furthermore, the underlying contract must give the relevant Mainland court exclusive jurisdiction to resolve disputes that may arise. As it is relatively rare for non-PRC corporations to provide in their contracts for exclusive jurisdiction of the PRC courts, the underlying arrangement between Hong Kong and Mainland China may be more important in facilitating the enforcement of Hong Kong judgments against assets in the Mainland rather than vice versa.
Judgments from most other jurisdictions, including the UK and the US, must be enforced at common law, by way of an action brought in Hong Kong to enforce a foreign judgment debt (without the need to re-litigate the underlying cause of action).
Reg. (EU) 1215/2012 governs enforcement of judgements in civil proceedings instituted on or after 10 January 2015 before the courts of the EU Member States, while recognition of judgements instituted before that day are still subject to Reg. (EU) 44/2001. The main principle is that any enforceable “judgment given in a Member State shall be recognised in the other Member States without any special procedure being required” (article 36.1).
Specific rules are set forth by the 1968 Brussels Convention, applying to the territories of the EU Member States which fall within the territorial scope of that Convention and which are excluded from Reg. 1215/2015 pursuant to Article 355 of the TFEU, and by the 2007 Lugano Convention governing the recognition in Italy of decisions rendered in Iceland, Norway and Switzerland.
In the absence of a multilateral or bilateral treaty (which Italy has entered into with Argentina, Brazil, China, Egypt, Kuwait, Lebanon, Moldova, Morocco, Russia, Tunisia and Turkey), recognition and enforcement of other foreign decisions is governed by Law 218/1998. Pursuant to article 64 the foreign judgement can be recognized to the extent that it complies with certain requirements (competence of the issuing court; fair trial; judgment must be final and not conflicting with other final decisions issued by an Italian court or with Italian public policy principles; absence of other previously lodged proceedings in Italy on the same course of action).
The method of enforcing foreign judgements in Ireland depends on where the judgment has been obtained and whether there is an agreement of mutual recognition in place.
Under the Brussels (Recast) Regulation and the Lugano Convention, if the judgement was made by a court of another EU or European Free Trade Association state, it may be recognised and enforced in Ireland without any further proceedings, subject to certain conditions being fulfilled. Recognition and enforcement may be refused inter alia if it is manifestly contrary to Irish public policy.
In respect of judgments obtained outside the EU/EFTA, conflict of law rules apply. In this instance, the party seeking to enforce the foreign judgment must issue summary proceedings in the Irish High Court seeking an Irish judgment in the terms of the foreign judgment. In order for an Irish court to recognise any such foreign judgment, it must be:
- for a definite sum;
- final and conclusive; and
- have been awarded by a court of competent jurisdiction.
For having decisions of EU member states, Norway and Iceland recognised and declared enforceable in Switzerland the relatively swift procedure of the Lugano Convention applies. The procedure is ex-parte, i.e. the opposing party can raise its objection only in the course of an appeal against the court's decision of enforcement.
For all other decisions, the respective provisions of the Swiss Code on International Private Law applies, which provides for a contradictory proceeding where the opposing party can directly object against the request for recognition and/or declaration of enforcement.
The enforcement of foreign judgments (article 242 and subsequent of the CPC) is subject to an “exequatur” (authorization) by the Supreme Court. The party seeking enforcement must submit a certified copy of the award with, if necessary, an official translation into Spanish. As Chile has signed the New York Convention, the exequatur may only be denied for the reasons provided in article V therein. The award must be final and binding and it also must respect Chilean public policy. Once the exequatur is granted, the foreign judgment is as enforceable as any domestic award and, therefore, it can be enforced under the general rules. Enforcement must be sought before the court that would have been competent to hear the proceeding if it would have been brought before Chilean courts.
The enforcement of a foreign award in Sweden must be based on an international convention that Sweden has acceded to, or EU legislation permitting the enforcement in other member states. As a general rule, issues regarding the enforceability of foreign awards pertain to form and not merits of the award.
The basic prerequisites are that the debtor is a resident of Sweden and that the enforceability is based on international legislation or an international convention. Enforceability is possible even if permission to enforce a foreign award is not granted in a treaty, convention or other legislation, assuming the parties have an agreement that the claim which the award is based upon was to be subject to litigation in a specific country. Accordingly, a defendant cannot ‘escape’ enforceability in Sweden if it is established that the defendant and the claimant had an agreement (a forum litigation clause) that litigation was to be performed in a specific country.
Foreign awards in commercial matters rendered in EU or EFTA states require little formalities and a request is submitted to the Swedish Enforcement Authority. Other awards may be more complex to enforce and require a declaration of enforceability from a Swedish district court.
A foreign award that contradicts Swedish public policy, i.e. ordre public, can never be enforced.
According to Commission Regulation (EU) No 1215/2012, foreign judgements passed in other Member States must be treated, for enforcement purposes, as if they were given in the Member State of enforcement. That is, without any specific procedure.
Outside the scope of this Regulation, the internal rules regarding this matter determine that, in order to enforce a foreign decision within the Portuguese jurisdiction, such decision must be formally reviewed and confirmed by a Portuguese court (the Court of Appeal in the area of residency of the party against whom that decision was issued being the competent court).
Pursuant to the Civil Procedures Law, judgments and orders issued in a foreign country may be enforced in the UAE on the same conditions as prescribed in the laws of that country for the enforcement of similar judgments and orders issued in the UAE.
Enforcement procedures are similar to normal litigation procedures where the application is filed with the Court of First Instance which has jurisdiction over the said enforcement.
Before enforcement of a foreign judgment is ordered, there are a few matters which have to be verified including the fact that the UAE Courts do not have jurisdiction over the dispute in which the foreign judgment has been issued, and that the foreign courts which issued it have jurisdiction therein under the international rules of or legal jurisdiction prescribed in its laws.
Further, it must be verified that the opposing parties in the case in which the foreign judgment has been issued have been duly summoned to appear, and have been duly represented.
In addition, the foreign judgment must have acquired the force of a fait accompli under the law of the court which issued it, and must not conflict with a judgment or order previously issued by a court in the UAE and contains nothing in breach of public morals or order in the UAE.
The above also applies to arbitration awards issued in a foreign country.
Finally, the above applies to the extent where it does not affect or contradict the terms of treaties executed between the UAE and other countries.
The enforcement of foreign judgments in Saudi Arabia is governed by the Enforcement Regulation of 2012, Article 11 of which makes enforcement of foreign judgments conditional on reciprocity. The only international treaties on the reciprocal enforcement of judgments to which Saudi Arabia is a party are the Arab League Treaty on the Enforcement of Judgments of 1983, and the Arab Gulf Cooperation Council Convention on the Enforcement of Judgments of 1995.
Applications for the enforcement of foreign judgments must be lodged with an enforcement judge, and must satisfy the following requirements:
- The judgment must be final and unappealable;
- There must not have been any action pending before a Saudi Arabian court in respect of the same issues;
- The defendant was summoned to attend, was properly represented and was put in a position to defend himself; and
- The judgment does not conflict with Islamic Law.
Norway is a party to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This means that judgements from countries outside the EU and EEA area as a rule can not be enforced in Norway.
There are no international treaties or federal laws requiring U.S. federal courts to enforce foreign judgments. However, many states have adopted the Uniform Foreign Money-Judgments Recognition Act (the “UFMJRA”). Under the UFMJRA, courts will generally recognize foreign judgments for a sum of money.
U.S. courts will also generally recognize foreign declaratory judgments and injunctions. However, there are situations in which U.S. courts will not enforce foreign judgments, including when the judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with due process, or when the foreign court did not have personal jurisdiction over the defendant.
Recognition and enforcement of foreign judgments is regulated in the Austrian Enforcement Code and in bilateral and multilateral treaties. The most relevant instrument for the enforcement of foreign judgments in commercial and civil matters is the Brussels Regulation (EU-Regulation 1215/2012), which governs the enforcement of judgments of other EU member states. The enforcement of judgments rendered in an EU member state is straightforward as it does not require a separate declaration of enforceability and is subject to the same conditions as Austrian judgements. Judgements rendered in Switzerland, Norway and Iceland will be recognised without requiring a declaration of enforceability in accordance with the revised Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters.
Outside the scope of the EU and EFTA, the enforcement of foreign judgments requires a formal declaration of enforceability (exequatur proceeding). Such a declaration is only granted if the judgment in question is enforceable according to the law of the foreign state and if reciprocity is guaranteed by a bilateral or multilateral treaty. If no reciprocity agreement has been concluded, Austrian courts will not grant enforcement of a foreign judgment.
Foreign judgements can be enforced when all the following requirements are met (CCP, Article 118):
(i) The jurisdiction of the foreign court is recognized under the Japanese laws or regulations or conventions or treaties;
(ii) The losing defendant has been properly served with the necessary summons or order to commence the litigation, except service by publication or any similar service, or appeared in court without being so served;
(iii) The contents of the judgment and the court proceedings are not contrary to public policy in Japan; and
(iv) There is reciprocity between Japan and the country of the foreign court in relation to the enforcement of foreign judgments.
Note that the Supreme Court has ruled in the past that the portion of the foreign judgment which ordered the payment of punitive damages under the laws of California cannot be enforced because claims for punitive damages are not allowed in Japan and permitting such enforcement is contrary to public policy in Japan.
The enforcement of foreign judgments is dependent upon where the judgment originates. The Brussels Regulation, recast Brussels Regulation and Lugano Convention govern the enforcement of the judgments originating from the European Union member states. Generally speaking, judgments given in one contracting state are freely enforceable in another contracting state with only minor administrative steps required. Common law governs other foreign judgments and requires that the foreign judgment is final and conclusive, excludes injunctions and must be decided on the merits of the case. The position could change substantially after BREXIT depending upon what deal the UK and EU strike.
In Denmark it is a general principle that a judgment has both legal force (res judicata) and can be enforced. For foreign judgments there are different rules governing the enforcement although enforcement of foreign judgments in general is determined by multi-lateral agreements. If a judgment is from a court in a country outside the EU or the "Lugano" area it is the main principle that it is only enforced if there is a treaty obligation. There is only one such further convention, namely the Nordic Judgment Convention, but that has in reality lost its relevance due to the overlapping Bruxelles/Lugano Regulation. In reality therefore judgments from courts outside the EU/Lugano area will not be enforced in Denmark.
Jurisdiction agreements are generally accepted by Danish courts and a case instigated before a Danish court in violation of a jurisdiction agreement pointing to a foreign court will be dismissed.
The Bruxelles I Regulation applies in cases where the plaintiff lives within an EU member state, and the Lugano Convention applies when the plaintiff lives in a Lugano Country. The legislation entails that every foreign judgment (from such country) will be enforced.
Judgments from other countries, also if decided in accordance with a jurisdiction agreement is not enforceable in Denmark and a new case will have to be started. The foreign judgment will be granted value as evidence, but it will not be binding for the Danish court. The evidentiary value will depend upon the circumstances, in particular whether the Danish party was duly served, actually appeared in the foreign court and lodged a defense.
Foreign arbitral awards are enforced in Danish law due to the ratification of the New York Convention, and the Danish Arbitration Act does not contain any distinction between Danish and foreign awards.
The enforcement procedure differs according to the country the foreign judgment originates from.
If the judgment originates from another EU member state, it benefits from the intra-EU facilitated process of enforcement. Pursuant to Article 36 and 39 of the Brussels I Regulation recast, a judgment from a member state is automatically recognised and enforceable in all other member states without any special procedure being required (e.g. no need for an exequatur). French courts may only refuse to enforce an EU member state’s judgment on very limited grounds, such as a manifest violation of French public policy (Brussels I Regulation recast, Articles 45 and 46).
If the judgment originates from a foreign country which has entered into an international convention with France, such convention may provide for a specific enforcement procedure.
If neither Brussels I Regulation recast, nor any international convention applies, the enforcement procedure is governed by the domestic rules of recognition and enforcement of foreign judgments. In this case, enforcement proceedings must be brought before the Tribunal de grande instance. The following conditions must be satisfied:
- the subject-matter of the foreign judgment must be sufficiently or substantially connected with the jurisdiction of the court that rendered it, the choice of the foreign court must not be fraudulent and French courts must not have exclusive jurisdiction over the matter;
- the judgment must not be contrary to French international public policy, both pertaining to the merits and to the procedure of the case;
- the judgment must not conflict with a French judgment or a foreign judgment which has become effective in France and there are no proceedings pending before French courts at the time enforcement is sought and having the same or similar subject-matter as the foreign judgment.
Under the Code, foreign judgments have been categorized as arising out of: (i) reciprocating territories; and (ii) non-reciprocating territories. Section 44A of the Code defines a ‘reciprocating territory’ as any country or territory outside India which the Central Government of India may, by notification in the Official Gazette, declare to be a reciprocating territory. It is noteworthy that a decree passed by any superior courts of a ‘reciprocating territory’ may be executed as if it had been passed by a court in India.
On the contrary, for the enforcement/execution of a foreign judgment passed by a non-reciprocating territory, the first step is to file a fresh civil suit in a domestic Indian court of competent jurisdiction. For this purpose, the foreign judgment will only have evidentiary value before the courts in India.
Further, in India, all foreign judgments are considered conclusive as to any matter between the same parties subject to certain exceptions, as illustrated in Section 13 of the Code. Some of the exceptions in this regard are listed hereinbelow:
(a) Where the foreign judgment was not pronounced by a court of competent jurisdiction;
(b) Where the foreign judgment must have been given on the merits of the case;
(c) Where the proceedings in which the foreign judgment was obtained, were opposed to natural justice; and
(d) Where the foreign judgment was obtained by fraud.