enforcing foreign judgments and arbitration awards in England
and Wales
In order to enforce a foreign judgment in the
English courts the first step is to identify the country in which
the judgment was obtained. The applicable law and procedure
to follow is dependant on this.
The common law starting point is to issue
fresh proceedings. However, there are exceptions to this. Such
exceptions come in the form of reciprocal regimes with other
countries. England is a party to several. These regimes all entail
a process of registration with the English courts which enables
enforcement to proceed as if the judgment had been obtained in an
English court, ie without the need to commence new proceedings. The
different categories to identify, which all involve enforcement by
registration, are as follows:
1. Enforcement of UK judgments in England and Wales
There is legislation, in the form of The Civil
Judgments and Jurisdiction Act 1982, which applies to the
registration and enforcement of a judgment in a jurisdiction within
the UK. This means that judgments obtained in Scotland and Northern
Ireland are enforceable by way of registration, as long as
registration takes place within six months of the date of
issue.
2. Enforcement of judgments from countries which are
signatories to the Brussels Regulation 2001 and Lugano Convention
1988
The English Courts will enforce money
judgments and injunctions made by an EU court in all judgments in
civil and commercial matters obtained on or after 1 March 2002
(with a few exceptions including insolvency and arbitration) in
accordance with Brussels Regulation 44/2001. The Lugano Convention
applies to European Free Trade Association (EFTA) countries, eg
Iceland, Norway, Switzerland and Denmark, and contains similar
provisions to the Brussels Regulation.
Applications to register judgments must be
made to Queen's Bench Division in the High Court and registration
must take place within six years of the date of the original
judgment.
European Enforcement Orders (EEO)
An EEO can be obtained from courts within the
European Community where a judgment in a civil or commercial matter
has not been contested in any way by the judgment debtor (either by
agreeing to the debt or by not appearing in court when the claim is
heard). The effect of obtaining an EEO means that enforcement can
take place immediately and no registration is required as the
courts automatically recognise them as enforceable. However, a
judgment debtor does have the option of making an application to
the court requesting that it refuse to enforce an EEO.
3. Enforcement of judgments from countries with which the UK
has entered into a bi-lateral agreement
The Administration of Justice Act 1920
provides for the enforcement of money judgments from the higher
courts of 53 colonial and commonwealth countries by way of
registration. Examples of countries covered for reciprocal
enforcement under the Act are the Bahamas, Ghana, Malta, Singapore
and Zimbabwe.
Bi-lateral agreements have been entered into
with some countries pursuant to the Foreign Judgments (Reciprocal
Enforcement) Act 1933 which allows for money judgments from the
higher courts of those countries to be enforced by way of
registration. Examples of countries covered for reciprocal
enforcement under the Act are Australia, Israel, Pakistan and the
Isle of Man.
Non-money judgments obtained in any of the
countries that fall under this legislation must be enforced by
issuing fresh proceedings.
enforcement at common law: countries with which the UK has no
reciprocal rights of enforcement
To enforce a foreign judgment where no
reciprocal regimes is applicable, for example Russia, the USA,
Japan and China, the judgment itself must be final and conclusive
in the court that pronounced it and must have been given by a court
regarded by English law as competent to do so. This means that the
judgment must be definite, for a fixed sum of money, and the
defendant must have been present within the jurisdiction of the
court or submitted to jurisdiction of the court (by voluntary
appearance or by contract).
Fresh proceedings are commenced in which the
judgment is sued upon as a debt. The proceedings must be commenced
within six years of the date of the original judgment. There
will not be a re-examination of the merits of the case at court and
the usual step is for the claimant to make an application for
summary judgment on the basis that there is no defence to the
claim. The English courts have the power to award interest on the
foreign judgment following a successful application for summary
judgment, even if the foreign court had no power to do so.
This approach dispenses with the need for a
trial and is usually successful where the judgment debtor has no
credible defence.
The burden of proof lies with the judgment
debtor and the available defences include:
- lack of jurisdiction of the foreign court
- judgment not for a definite sum
- judgment not final and conclusive
- judgment contrary to rules of natural justice
- judgment obtained by fraud
- judgment in conflict with a prior English judgment
enforcement of arbitration awards
The law and procedure relating to the
enforcement of foreign arbitration awards is entirely different to
that of enforcement of foreign court judgments. The New York
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards will apply and in England and Wales the "reciprocity
reservation" applies meaning that the English courts only apply the
New York Convention where the country where the arbitral award was
made and the country where enforcement is desired, are both party
to the Convention. 144 countries have signed up, including Russia,
China, the USA, India, Australia and many EU countries. The effect
of this is that the courts will treat the award as if it were a
judgment originating in the English courts, making it automatically
enforceable.
There are defences available under the
Convention, including:
- a party to the agreement was under some incapacity
- the agreement was not valid under the law to which the parties
have subjected it
- the party against whom the award was made was not given proper
notice of the appointment of the arbitrator or the arbitration
proceeding themselves
- the award deals with a difference not contemplated by or not
falling within the terms of the submission to arbitration
- the composition of the arbitrary authority was not in
accordance with the agreement of the parties
- the award has not yet become binding on the parties, or has
been set aside or suspended
- it would be contrary to public policy to recognise or enforce
the award
View our article in Russian on Инструкция по обеспечению исполнения решений
иностранных судов и арбитражей в Англии и Уэльсе.
