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

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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 15

England & Wales

Covington & Burling LLP Shivani Sanghi

Louise Freeman

England & Wales

Hague Convention

on Choice of Court

Agreements (Hague

Convention).

All Member

States of

the EU and

Mexico,

Montenegro,

and Singapore.

See Chapter 1 and

question 5.1.

Statutory Regimes

Administration of

Justice Act 1920

(“AJA” ).

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 prin-

cipal coun-

tries include

Republic of

Cyprus, Malta,

New Zealand

and Malaysia.

Section 3.

Foreign Judgments

(Reciprocal

Enforcement) Act

1933 (“FJA”).

Mainly coun-

tries in the

Common-

wealth such

as Australia,

Canada (except

Quebec), India,

Guernsey,

Jersey, Isle of

Man, Israel,

Pakistan,

Suriname and

Tonga.

Section 3.

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

EU Regime*

EU Regulation

1215/2012 on juris-

diction and the

recognition and

enforcement of

judgments in civil

and commercial

matters (Brussels

Recast Regulation)

applicable to legal

proceedings insti-

tuted on or after 10

January 2015.

All Member

States of the

EU (except

Denmark).

See Chapter 2.

EU Regulation

44/2001 on jurisdic-

tion and the recog-

nition and enforce-

ment of judgments

in civil and commer-

cial matters (Brussels

Regulation) appli-

cable to judg-

ments given in legal

proceedings insti-

tuted before 10

January 2015.

All Member

States of the

EU.

See Chapter 2.

Convention on juris-

diction and the

enforcement of judg-

ments in civil and

commercial matters

signed in Lugano

on 30 October

2007 (Lugano

Convention).

Iceland,

Norway and

Switzerland.

See Chapter 2.

88 England & Wales

Enforcement of Foreign Judgments 2020

and enforced at common law, it must be final, binding and

conclusive. A foreign judgment is only considered final and

binding where it would have precluded the unsuccessful party

from bringing fresh proceedings in that foreign jurisdiction.

If a foreign judgment is the subject of appeal in that jurisdic-

tion, the English courts are likely to grant a stay on enforcement

proceedings pending the outcome of that appeal.

The common law rules also require the judgment to be

enforced to have been rendered by a court of competent juris-

diction, which is taken to mean one of the following:

a) the person against whom the judgment was given was, at

the time the proceedings were instituted, present in the

foreign country;

b) the person against whom the judgment was given was

claimant, or counterclaimed, in the proceedings in the

foreign court;

c) the person against whom the judgment was given submitted

to the jurisdiction of that court by voluntarily appearing in

the proceedings (which will not include submitting argu-

ments on the merits where under local law, a challenge to

jurisdiction can only be brought in conjunction with such

arguments on the merits); or

d) the person against whom the judgment was given had,

before the commencement of the proceedings, agreed, in

respect of the subject matter of the proceedings, to submit

to the jurisdiction of that court or of the courts of that

country.

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, payment into court 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, disre-

garding 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 the common law.

However, enforcement of any part of a monetary payment obli-

gation in a foreign judgment which has been calculated by multi-

plying a compensatory sum is not permitted.

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 courts of England and Wales have jurisdiction to decide on

questions of enforcement at common law without any need to

establish a degree of connection with England or Wales (CPR

Practice Direction 3.1(10)). A court may, however, conclude that

it is not the most convenient forum if there is no real connection

to the jurisdiction.

2.5 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 circum-

scribed jurisdiction without the medium of the English courts.

General Regime

English common law

regime.

Countries to

which none

of the above

specific stat-

utes/regula-

tions apply

including

USA, China

(including

Hong Kong),

Russia and

Brazil.

Section 2.

* Please see Chapter 2 for further information on the EU recog-

nition and enforcement regime. The EU Regime will apply in

the UK until the end of 2020. Thereafter, the position is not yet

known (see section 5.1 below).

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.

The procedure for enforcement of such foreign judgments is

set out in Part 74 of the English Civil Procedure Rules (“CPR”).

2.2 What constitutes a ‘judgment’ capable of

recognition and enforcement in your jurisdiction?

In English law, a judgment is considered to be any judgment

given by a court or tribunal, whatever it may be called. CPR

74.2(c) provides that a foreign “judgment” in the context of

enforcement in England includes a decree, an order, a decision,

a writ of execution or a writ of control, and a determination of

costs by an officer of the court.

Similarly, the Lugano Convention (at Article 32), the Brussels

Regulation (at Article 32) and the Brussels Recast Regulation (at

Article 2(a)) all stipulate that “judgment” means any judgment

given by a court or tribunal whatever a judgment may be called,

including a decree, order, decision or writ of execution as well

as the determination of costs or expenses. These instruments

therefore do not preclude from their scope non-money judg-

ments and interim orders, including injunctions.

The AJA (at section 12) provides that “judgment” means any

judgment or order given or made by a court in any civil proceed-

ings, whereby any sum of money is payable. The FJA has a similar

definition at section 11, defining a judgment as a judgment or

order given or made by a court in any civil or criminal proceed-

ings for the payment of a sum of money in respect of compen-

sation or damages to an injured party. Accordingly, under these

two Acts, as well as at common law, non-money judgments and

interim orders, including injunctions, are not enforceable.

2.3 What requirements (in form and substance) must

a foreign judgment satisfy in order to be recognised and

enforceable in your jurisdiction?

As noted above, in order for a foreign judgment to be recognised

89Covington & Burling LLP

Enforcement of Foreign Judgments 2020

g) the dispute in question should be submitted to the deter-

mination of the courts of another country;

h) the judgment imposes a fine or a penalty upon the judg-

ment debtor; and

i) there exists a previous final and conclusive judgment of a

competent foreign or English court with sufficient juris-

diction that conflicts with the judgment that is being

sought to be enforced.

These challenges can be made by the defendant in the proceed-

ings 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 judg-

ment application under CPR Part 24 or employed as defences to

recognition and enforcement.

2.8 What, if any, is the relevant legal framework

applicable to recognising and enforcing foreign

judgments relating to specific subject matters?

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 regula-

tions 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.

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?

Under common law, the defendant is entitled to challenge recog-

nition 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.

2.10 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 mani-

festly wrong on the merits of the case or misapplied the relevant

law. However, if the foreign court’s judgment conflicts with an

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

and 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.

2.6 Briefly explain the procedure for recognising and

enforcing a foreign judgment in your jurisdiction.

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 (unless the court makes an

order to dispense with service out of the jurisdiction in excep-

tional circumstances), 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), on grounds that the judgment debtor has

no real prospect of success as evidenced by the foreign judg-

ment. 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 2.7,

point d) 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.

2.7 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 judg-

ment 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;

90 England & Wales

Enforcement of Foreign Judgments 2020

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 jurisdic-

tion 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.

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.

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 judg-

ment, 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 there-

fore 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 authenti-

cated 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 74.4.

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.

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.

2.11 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.

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.

The United Kingdom does not constitute a legal union, as the

laws of England and 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

and Wales under the Civil Jurisdiction and Judgments Act 1982.

As such, there are no types of judgment excluded from recog-

nition and enforcement if 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.

2.13 What is the relevant limitation period to recognise

and enforce a foreign judgment?

Pursuant to section 24(1) of the Limitation Act 1980, the limita-

tion 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?

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 England.

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

91Covington & Burling LLP

Enforcement of Foreign Judgments 2020

ascertain the judgment debtor’s assets in order to facilitate

payment of judgment debts.

d) Third-party debt order – This allows the judgment cred-

itor 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 judg-

ment 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 enforce-

ment of foreign judgments pending enforcement proceedings in

England. 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.

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 UK left the EU on 31 January 2020 on the terms of the

Withdrawal Agreement.

Under the terms of the Withdrawal Agreement, the Brussels

Recast Regulation continues to apply to legal proceedings

commenced before the end of the transition period (which is

currently scheduled to end on 31 December 2020). Pursuant to

Article 67(1) of the Withdrawal Agreement, the Brussels Recast

Regulation also applies to related proceedings that are commenced

after the conclusion of the transition period; for example, those that

arise from the same cause of action, or involve the same parties.

The UK government hopes to conclude a new civil jurisdic-

tion and judgments regime with the EU before the end of the

transition period. In the case of no agreement on civil jurisdic-

tion and judgments being concluded by the end of the transi-

tion period, or indeed in the event of a no-deal Brexit, at that

point, there would be no agreed EU framework for ongoing civil

judicial cooperation between the UK and EU countries, as the

Brussels Recast Regulation would no longer apply to the UK.

Similarly, the Lugano Convention and the Hague Convention

on Choice of Court Agreements are to be applied by English

courts until the end of the transition period. Thereafter, they

will cease to apply, unless other arrangements are put in place.

The UK government has indicated that, to address these risks,

the UK intends to accede to both the Lugano Convention and

the Hague Convention on Choice of Court Agreements in its

own right at the end of the transition period.

In relation to the Lugano Convention, Switzerland, Iceland

and Norway have issued statements that they will support a

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

the support of those countries and also the EU and Denmark to

accede to the Lugano Convention.

In relation to the Hague Convention, the UK Government

intends to deposit an instrument of accession before the end of

the transition period. See Chapter 1 for further details about the

relevance of this Convention in the context of Brexit.

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 jurisdic-

tion. The foreign court must have jurisdiction according

to English law principles;

b) the defendant was not served with proceedings in accord-

ance 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 compe-

tent 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 and

enforced, 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 judg-

ment had been made in England. Under the AJA and FJA, enforce-

ment 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 cred-

itors include but are not limited to:

a) Charging order – Such an order would confer upon the judg-

ment creditor an interest over the property (land, goods, secu-

rities, 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

92 England & Wales

Enforcement of Foreign Judgments 2020

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.

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 trans-

action for the purposes of s.3(1) of the State Immunity Act 1978”. The

UK Supreme Court decision in NML Capital Ltd v Republic of

Argentina ([2011] UKSC 31) confirmed 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 under-

lying 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 immu-

nity in relation to enforcement proceedings is made particu-

larly difficult, as there is little ammunition available to the judg-

ment 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.

While the UK’s departure from the EU will inevitably result

in some changes to the framework for recognition and enforce-

ment of judgments, we anticipate that the English courts will

continue to recognise and apply clearly drafted jurisdiction

clauses, and that judgments of the English courts will continue

to be enforced in Member States (and vice versa), albeit perhaps

with additional procedural steps to overcome.

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?

Owing to the variety of regimes discussed above, it is particu-

larly important for clients seeking to enforce a foreign judg-

ment 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.

It is important to note that when determining whether the

foreign court had competent jurisdiction, the English courts

will make this determination according to the rules of English

private international law. The fact that the foreign court had

jurisdiction according to its own law is not determinative.

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,

Enforcement of Foreign Judgments 2020

Covington & Burling LLP

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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