Enforcement of Foreign Judgments 2020

Enforcement of Foreign

Judgments 2020

A practical cross-border insight into the enforcement of foreign judgments

Fifth Edition

CC RRDD

Commercial Dispute Resolution

Featuring contributions from:

Advokatrman Hammarskiöld & Co

Allen & Gledhill (Myanmar) Co., Ltd.

Allen & Gledhill LLP

Archipel

Bae, Kim & Lee LLC

Bär & Karrer Ltd.

Blake, Cassels & Graydon LLP

Boss & Young, Attorneys-at-Law

Covington & Burling LLP

CRA – Coelho Ribeiro e Associados

CRB Africa Legal

Debarliev, Dameski and Kelesoska,

Attorneys at Law

ESENYEL & PARTNERS LAWYERS AND

CONSULTANTS

Gall

GASSER PARTNER Attorneys at Law

GVZH Advocates

Herbert Smith Freehills LLP

King & Wood Mallesons

Konrad Partners

Kubas Kos Gałkowski

Macesic and Partners LLC

Machado Meyer Sendacz e Opice Advogados

MinterEllison

Montanios & Montanios LLC

Mori Hamada & Matsumoto

Osborne Clarke LLP

Papadimitriou – Pimblis & Partners

PIERRE THIELEN AVOCATS S.à r.l

Portolano Cavallo

Quevedo & Ponce

Rahmat Lim & Partners

Roberts & Shoda

Sébastien Champagne & Vanessa Foncke

Simont Braun

Sorainen

Van Oosten Schulz De Korte

Williams & Connolly LLP

Wilmer Cutler Pickering Hale and Dorr LLP

Enforcement of Foreign

Judgments 2020

Fifth Edition

Contributing Editors:

Louise Freeman & Shivani Sanghi

Covington & Burling LLP

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ISBN 978-1-83918-034-7

ISSN 2397-1924

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Strategic Partners

Table of Contents

Q&A Chapters

Australia

MinterEllison: Beverley Newbold & Evan Goldman

Austria

Konrad Partners: Dr. Christian W. Konrad & Philipp

A. Peters

130

Korea

Bae, Kim & Lee LLC: Seong Soo Kim & Yoo Joung

Kang

136

Liechtenstein

GASSER PARTNER Attorneys at Law: Thomas Nigg &

Domenik Vogt

Expert Chapters

Enforcement Under the Hague Choice of Court Convention

Louise Freeman & Shivani Sanghi, Covington & Burling LLP

Belarus

Sorainen: Alexey Anischenko, Valeria Dubeshka &

Katsiaryna Hashko

Belgium

Simont Braun: Rafaël Jafferali & Fanny Laune

Brazil

Machado Meyer Sendacz e Opice Advogados:

Eduardo Perazza de Medeiros & Ariana Júlia de

Almeida Anfe

Canada

Blake, Cassels & Graydon LLP: Erin Hoult & Josianne

Rocca

China

Boss & Young, Attorneys-at-Law: Dr. Xu Guojian

Croatia

Macesic and Partners LLC: Anita Krizmanic

Cyprus

Montanios & Montanios LLC: Yiannis Papapetrou

Ecuador

Quevedo & Ponce: Alejandro Ponce Martínez & María

Belén Merchán

England & Wales

Covington & Burling LLP: Louise Freeman & Shivani

Sanghi

France

Archipel: Jacques-Alexandre Genet & Michaël

Schlesinger

100

Germany

Herbert Smith Freehills LLP: Catrice Gayer & Sören

Flecks

142

Luxembourg

PIERRE THIELEN AVOCATS S.à r.l: Peggy Goossens

147

Malaysia

Rahmat Lim & Partners: Jack Yow & Daphne Koo

153

Malta

GVZH Advocates: Dr. Karl Briffa, Dr. Ariana Falzon &

Dr. Nicole Sciberras Debono

158

Myanmar

Allen & Gledhill (Myanmar) Co., Ltd.: Minn Naing Oo

162

Netherlands

Van Oosten Schulz De Korte: Jurjen de Korte

167

Nigeria

Roberts & Shoda: Adeniyi Shoda & Abolanle Davies

174

North Macedonia

Debarliev, Dameski and Kelesoska, Attorneys at Law:

Ivan Debarliev & Martina Angelkovic

179

Poland

Kubas Kos Gałkowski: Dr. Barbara Jelonek-Jarco &

Agnieszka Trzaska

188

Portugal

CRA – Coelho Ribeiro e Associados: Rui Botica

Santos & Mark Robertson

194

Singapore

Allen & Gledhill LLP: Tan Xeauwei & Melissa Mak

201

Spain

King & Wood Mallesons: Alfredo Guerrero &

Fernando Badenes

125

Japan

Mori Hamada & Matsumoto: Yuko Kanamaru &

Yoshinori Tatsuno

European Union

Sébastien Champagne & Vanessa Foncke

International Enforcement Strategy – An Overview

Andrew Bartlett, Osborne Clarke LLP

The Personal Jurisdiction Filter in the Recognition and Enforcement of Foreign Judgments in the United States

David W. Ogden, David W. Bowker, Karin Dryhurst & Apoorva J. Patel, Wilmer Cutler Pickering Hale and Dorr LLP

107

Greece

Papadimitriou – Pimblis & Partners: Nikos L.

Kanellias

113

Hong Kong

Gall: Nick Gall, Ashima Sood & Kritika Sethia

119

Italy

Portolano Cavallo: Filippo Frigerio, Martina Lucenti,

Micael Montinari & Claudia Rivieccio

207

Sweden

Advokatrman Hammarskiöld & Co:

Sandra Kaznova & Caroline Bogemyr

213

Switzerland

Bär & Karrer Ltd.: Saverio Lembo & Aurélie Conrad

Hari

Table of Contents

220

Tanzania

CRB Africa Legal: Rugambwa Cyril Pesha & Charles

R.B. Rwechungura

231

USA

Williams & Connolly LLP: John J. Buckley, Jr. &

Ana C. Reyes

226

Turkey

ESENYEL & PARTNERS LAWYERS AND

CONSULTANTS: Selcuk Esenyel

Enforcement of Foreign Judgments 2020

Chapter 1

Enforcement Under the

Hague Choice of Court

Convention

Covington & Burling LLP Shivani Sanghi

Louise Freeman

The Convention only applies in international matters. This

is defined as all situations “unless the parties are resident in the same

Contracting State and the relationship of the parties and all other elements

relevant to the dispute, regardless of the location of the chosen court, are

connected only with that State” (Article 1(2)).

What Does the Hague Choice of Court Convention

Not Cover?

As it applies only to exclusive jurisdiction agreements, the

Convention is widely understood not to apply to asymmetric

jurisdiction agreements.

Asymmetric (or hybrid) jurisdiction

agreements typically require one party to an agreement to sue

in the courts of a specified jurisdiction only, whilst allowing

the other party to sue in any court with jurisdiction and are

commonly found in financial markets transactions.

The Convention also has exclusions intended to confine it to

international trade (e.g., it does not apply to consumers, employ-

ment law, family law and probate). It also does not apply to

certain specialist matters (such as arbitration and competition /

antitrust law) (Article 2).

How Does the Hague Choice of Court Convention

Work?

The Convention contains three basic rules that give effect to

exclusive choice of court agreements:

1. For an exclusive jurisdiction agreement establishing a choice

of court that is a Contracting State to the Convention, the

chosen court is obliged to hear the case (Article 5). The

chosen court cannot decline to do so on the basis that the

case should be decided in another Contracting State, or

that another Contracting State is more appropriate, or that

another Contracting State is already hearing it. So, if the

parties choose exclusive English jurisdiction, the English

court must accept jurisdiction.

2. All other courts must refuse to hear the case (Article 6).

So, if the parties choose exclusive English jurisdiction,

Mexican courts (for example) must refuse to hear the case.

3. Any judgment on a case’s merits given by the chosen

court under an exclusive choice of court agreement must

be recognised and enforced across all other Contracting

States, provided that the judgment would be enforceable in

the Contracting State of Origin (Article 8) and a ground of

refusal does not apply (Article 9). This includes summary

judgments

and determination of costs or expenses by the

court, but does not include enforcement of any interim

measures. So, if the parties choose exclusive English juris-

diction and the English court gives a judgment on the case,

the Mexican court (for example) must enforce that judg-

ment unless one of the limited exceptions applies.

The Hague Choice of Court Convention is regularly referred to

in the context of its role post-Brexit. In this chapter, we go back

to basics, with a reminder of what the Convention is and what it

does, as well as looking at its likely role post-Brexit.

What is the Hague Choice of Court Convention?

The Hague Choice of Court Convention

is an international

treaty concluded within the Hague Conference on Private

International Law. It was signed on 30 June 2005 and it came

into effect on 1 October 2015.

It is designed to promote international trade and invest-

ment by offering greater certainty for parties involved in busi-

ness-to-business contracts and international litigation. This

is achieved through the creation of a worldwide framework

of rules relating to jurisdiction agreements (also known as

forum-selection or choice of court clauses) in civil and commer-

cial matters, and the subsequent recognition and enforcement of

a judgment given by a court of a Contracting State designated in

such an agreement.

The Convention covers: jurisdiction rules for determining

which court hears a case; the obligations of a court when an

action is commenced which breaches an exclusive jurisdiction

agreement in favour of another court; and the recognition and

enforcement of judgments given by other Contracting States.

Who are Parties and Signatories to the Hague

Choice of Court Convention?

The current parties to the Convention (each a “Contracting

State”) are all of the EU Member States including, until 31

January 2020, the UK by virtue of its EU membership, Mexico,

Montenegro and Singapore.

The United States, China, Ukraine and North Macedonia

have signed but not yet ratified the Convention, and are there-

fore not yet parties to the Convention.

When Does the Hague Choice of Court Convention

Apply?

The Convention applies to “exclusive” choice of court agree-

ments “concluded in civil or commercial matters” (Article 1).

An agreement designating one or more specific courts in a

Contracting State is deemed to be exclusive unless the parties

have expressly provided otherwise (Article 3).

The chosen court has jurisdiction unless the choice of

court agreement is: substantially invalid under the law of the

Contracting State (e.g., entered into by fraud, mistake, misrep-

resentation, duress, lack of capacity, etc.); manifestly unjust

or contrary to the chosen court’s public policy; or cannot be

performed for exceptional reasons beyond the control of the

parties.

2 Enforcement Under the Hague Choice of Court Convention

Enforcement of Foreign Judgments 2020

Remaining uncertainty

The steps taken by the UK government to ensure the continued

application of the Hague Convention are welcome. There remain

some limitations and uncertainties arising from the regime when

compared to the current EU-wide regime, however, such that it

does not answer all issues that may arise in this context.

In particular, the Hague Convention does not contain any

rules relating to jurisdiction in situations other than exclusive

choice of court agreements, and does not contain any rules

relating to jurisdiction in the absence of party choice.

There is also some uncertainty as to whether courts in EU

Member States will be bound to apply the Convention to exclu-

sive jurisdiction clauses entered into after 1 October 2015 (when

the Hague Convention came into force for the EU) but prior to

the date of the UK’s independent accession to the Convention,

as it applies only from the date of “entry into force” for the

state of the chosen court. This gives rise to uncertainty as to

whether the date of “entry into force” for the UK is the date it

entered into force by means of the UK’s membership of the EU,

or only when it entered into force independently, by the UK’s

own accession to the Convention.

The UK has legislated in this regard

to protect choice of

court agreements entered into after 1 October 2015 and prior to

the date of the UK’s independent accession to the Convention.

However, this only dictates how UK courts will address this

issue. By contrast, the European Commission has published

guidance suggesting that the Convention will only apply to

exclusive choice of court agreements concluded after the UK has

become an independent party to the Convention.

It therefore

remains to be seen how EU Member State courts will address

this issue.

Conclusion

Unless a bespoke agreement is put in place before the end of the

Transition Period, the Convention will have increased relevance

between the UK and the EU post the Transition Period. The

Convention would then provide a useful stop-gap for EU/UK

judicial relations, but the remaining uncertainties seem sure to

become the subject of litigation.

Endnotes

1. Formally the “Hague Convention of 30 June 2005 on

Choice of Court Agreements”.

2. As referenced at paragraph 32 of the Explanatory Report

to the Hague Convention, although there is one English

case in which the judge suggested, obiter, that this was

not necessarily the case (Commerzbank Aktiengesellschaft v

Liquimar Tankers Management Inc [2017] EWHC 161 (Comm)).

3. Ermgassen & Co Ltd v Sixcap Financials Pte Ltd [2018]

SGHCR 8 (The High Court of Singapore).

4. Regulation (EU) 1215/2012 of the European Parliament

and of the Council on jurisdiction and the recognition and

enforcement of judgments in civil and commercial matters

(recast) (Brussels Recast Regulation). The Brussels Recast

Regulation takes priority in accordance with Article 26(6)

(a), Hague Convention.

5. The Withdrawal Agreement was ratified by the UK on 23

January 2020 and by the EU on 30 January 2020.

6. Footnote to Article 129(1), Withdrawal Agreement.

7. By virtue of Article 127 and Article 67, Withdrawal

Agreement.

8. The UK government has indicated that the UK intends

to accede to the Lugano Convention it its own right at the

end of the Transition Period. Switzerland, Iceland and

Norway have issued statements that they will support a

How Did the Convention Apply in the UK

pre-Brexit?

The UK, by virtue of its EU membership, has been a party to the

Convention since the Convention came into force on 1 October

2015.

The Convention has been most relevant to the UK where

there is an exclusive choice of court agreement with a nexus to

Mexico, Montenegro or Singapore. The Convention has had

limited effect where there is a nexus to an EU Member State, as

the Brussels Recast Regulation

has taken priority.

What Will be the Relevance of the Convention

After Brexit?

Under the Withdrawal Agreement

Now that the Withdrawal Agreement has been ratified and

approved by the UK and the EU,

the UK will continue to be

bound by the obligations stemming from international agree-

ments including the Hague Convention during the Transition

Period ending on 31 December 2020 (Articles 126 and 129(1),

Withdrawal Agreement).

However, whether or not other non-EU signatories to the

Hague Convention will treat the Hague Convention as contin-

uing to have effect in relation to UK jurisdiction clauses during

the Transition Period is unclear – as it is not something that the

UK and the EU can simply agree between themselves. Pursuant

to the terms of the Withdrawal Agreement,

the EU has now

notified other parties to international agreements that the UK

is to be treated as an EU Member State during the Transition

Period; however, the notification is not binding on the non-EU

signatories to the Hague Convention.

The UK will also continue to be treated as a Member State for

the purposes of the Brussels Recast Regulation,

which will there-

fore continue to be the primary means by which jurisdiction and

enforcement will be assessed in matters with an EU nexus.

It seems likely that, at some stage before the end of the

Transition Period, the UK government will accede to the Hague

Convention in its own right.

In the event of no civil jurisdiction and judgments

agreement being concluded

If no civil jurisdiction and judgments agreement is entered into

by the end of the Transition Period (or indeed, if there is a full

no-deal Brexit), the UK intends to become a party to the Hague

Convention in its own right. The Convention then would

govern jurisdiction and enforcement of relevant judgments as

between the UK and the EU (as well as the other Contracting

States of Mexico, Singapore and Montenegro) where there is an

exclusive jurisdiction clause in favour of one of those states.

It is open to the UK to become a party to the Convention in

its own right once the Convention ceases to apply to the UK, at

the end of the Transition Period. The UK intends to deposit an

instrument of accession to the Convention prior to the end of

the transition period.

The UK’s accession at the end of the Transition Period would

enable the Hague Convention to apply to disputes with an

EU-nexus, unless and until some other arrangement is put in

place between the EU and the UK, such as an agreement for the

UK to join the Lugano Convention

(which applies more broadly

than the Hague Convention because it is not limited to exclusive

jurisdiction agreements) or a bespoke agreement between the UK

and the EU on jurisdiction and enforcement of judgments.

3Covington & Burling LLP

Enforcement of Foreign Judgments 2020

request for accession from the UK. The UK will need to

obtain the support of those countries and also of the EU

and Denmark to accede to the Lugano Convention.

9. The Civil Jurisdiction and Judgments (Hague Convention on

Choice of Court Agreements 2005) (EU Exit) Regulations

2018.

10. Commission Notice to stakeholders on the effect on civil

justice and private international law of the UK’s with-

drawal from the EU (18 January 2019); questions and

answers related to the United Kingdom’s withdrawal from

the European Union in the field of civil justice and private

international law (11 April 2019) (particularly section 3.3).

Enforcement of Foreign Judgments 2020

Enforcement Under the Hague Choice of Court Convention

Louise Freeman focuses on complex commercial disputes, and co-chairs the rm’s Commercial Litigation and European Dispute Resolution

Practice Groups.

Described by The Legal 500 as “one of London’s most effective partners” and by Chambers as “a super person to work with”, Ms. Freeman helps

clients to navigate challenging situations in a range of industries, including nancial markets, technology and life sciences. Most of her cases

involve multiple parties and jurisdictions, where her strategic, dynamic advice is invaluable. Ms. Freeman also represents parties in signicant

competition litigation proceedings.

Covington & Burling LLP

265 Strand

London WC2R 1BH

United Kingdom

Tel: +44 20 7067 2000

Email: lfreeman@cov.com

URL: www.cov.com

Covington & Burling LLP (Covington) is a pre-eminent international law rm

with more than 1,000 attorneys and advisors and with ofces in Beijing,

Brussels, Dubai, Frankfurt, Johannesburg, London, Los Angeles, New York,

Palo Alto, San Francisco, Washington, Shanghai, and Seoul. In an increas-

ingly regulated world, we have an exceptional ability to navigate clients

through their most complex business problems, deals, and disputes.

www.cov.com

Shivani Sanghi is a dual-qualied lawyer: a Solicitor-Advocate in England and Wales; and an Advocate in India. Drawing on her extensive expe-

rience in complex, high-value cross-border litigation and international arbitration, Ms. Sanghi has advised clients across multiple jurisdictions

including the UK, Russia, India, British Virgin Islands, Cayman Islands, Luxembourg, Cyprus, and Bulgaria.

Ms. Sanghi has represented clients in a wide variety of sectors, including banking, telecoms, private equity, and software technology, and has

represented clients in many high-prole cases before the English courts, including the Court of Appeal and the UK Supreme Court.

Ms. Sanghi has been recognised by The Legal 500 UK 2019, as “senior associate to note” and “excellent future star” in the commercial litigation

category. She has also been named in The Lawyer for involvement in the Russian Facebook/VK.com dispute and the VTB v Nutritek case.

Ms. Sanghi previously practised as an Advocate in Delhi.

Covington & Burling LLP

265 Strand

London WC2R 1BH

United Kingdom

Tel: +44 20 7067 2000

Email: ssanghi@cov.com

URL: www.cov.com

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