Enforcement of Foreign Judgments
in 29 jurisdictions worldwide
Consulting editors: Mark Moedritzer and Kay C Whittaker
2014
®
Published by
Getting the Deal Through
in association with:
Advokatfirman Delphi
Alexander Vassardanis & Partners Law Firm
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Australia
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Bermuda
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Brazil
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British Virgin Islands
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O’Neal Webster 24
Canada
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Cayman Islands
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China
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France
Anke Sprengel
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Germany
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Greece
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Alexander Vassardanis & Partners Law Firm 60
Guatemala
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Mayora & Mayora, SC 67
Guernsey
Mark Dunster and Tim Bamford
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India
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Juris Corp, Advocates & Solicitors 78
Japan
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Philippines
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United Kingdom
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United States
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Venezuela
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Enforcement of
Foreign Judgments
2014
Consulting editors
Mark Moedritzer and
Kay C Whittaker
Shook, Hardy & Bacon LLP
Publisher
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Enforcement of Foreign
Judgments 2014
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CONTENTS
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Law
Business
Research
BRITISH VIRGIN ISLANDS O’Neal Webster
24 Getting the Deal Through – Enforcement of Foreign Judgments 2014
British Virgin Islands
Paul Webster and Rhonda Brown
O’Neal Webster
1 Treaties
Is your country party to any bilateral or multilateral treaties for the
reciprocal recognition and enforcement of foreign judgments? What is
the country’s approach to entering into these treaties and what if any
amendments or reservations has your country made to such treaties?
No; however, in the case of arbitration awards, while not a signa-
tory to the 1958 Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the New York Convention), the British
Virgin Islands (BVI) is a dependent overseas territory of the United
Kingdom, which is party to the New York Convention. The BVI
parliament has sought to give effect to the New York Convention
by virtue of part IX of the Arbitration Ordinance (chapter 6), which
deals with the enforcement of foreign arbitration awards generally,
and more specifically, New York Convention awards. The New
York Convention is included in its entirety in the schedule to the
Arbitration Ordinance.
2 Intra-state variations
Is there uniformity in the law on the enforcement of foreign judgments
among different jurisdictions within the country?
Not applicable.
3 Sources of law
What are the sources of law regarding the enforcement of foreign
judgments?
The main source of law on the enforcement of foreign judgments in
the BVI is legislation; these are:
• the Reciprocal Enforcement of Judgments Act (chapter 65),
which deals with the registration of judgments from the High
Court in England or Northern Ireland and the Court of Session
in Scotland;
• the Foreign Judgments (Reciprocal Enforcement) Act 1964,
which governs enforcement of judgments from certain named
Commonwealth jurisdictions; and
• theArbitrationOrdinance(chapter6),whichgovernstherecog-
nition of foreign arbitration awards).
Where a foreign judgment or award does not fall within the scope
of any of the aforementioned legislation, the common law governs
the enforcement of such a judgment and case law provides directions
on enforceability.
4 Hague Convention requirements
To the extent the enforcing country is a signatory of the Hague
Convention on Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters, will the court require strict compliance
with its provisions before recognising a foreign judgment?
Not applicable.
5 Limitation periods
What is the limitation period for enforcement of a foreign judgment?
When does it commence to run? In what circumstances would the
enforcing court consider the statute of limitations of the foreign
jurisdiction?
In the case of an application for registration of a judgment, including
an arbitration award, from the High Courts of England, Northern
Ireland or the Court of Session in Scotland, such an application
must be made within 12 months from the date of the judgment or
such longer date as the BVI court determines. The time commences
to run on the date that the judgment is given. An application for
registrationofanawardundertheForeignJudgments(Reciprocal
Enforcement) Act (that is, an application made by countries listed in
the subsidiary legislation) must be made within six years of the date
of the judgment or, where there have been appeals, the date of the
last judgment.
The BVI court would not consider the statute of limitations of
the foreign jurisdiction.
6 Types of enforceable order
Which remedies ordered by a foreign court are enforceable in your
jurisdiction?
The types of foreign judgments that may be enforced in the BVI are
limited to monetary judgments and arbitration awards (which are
not limited to awards for the payment of money).
7 Competent courts
Must cases seeking enforcement of foreign judgments be brought in a
particular court?
When seeking enforcement of a foreign judgment, an application
for registration of the foreign judgment must be brought in the High
Court of the British Virgin Islands in either its civil or commercial
division. The monetary amount of the judgment will determine the
in which court the application is brought, as claims valued at more
than US$500,000 are allocated to the commercial division of the
High Court.
8 Separation of recognition and enforcement
To what extent is the process for obtaining judicial recognition of a
foreign judgment separate from the process for enforcement?
Before a foreign judgment becomes enforceable in the BVI it must
first be recognised or registered in the BVI so that it can take effect
as if it were, in fact, a judgment of a BVI court. The claimant must
first make an application to the High Court, upon which the High
Court will make a determination on whether the foreign judgment
O’Neal Webster BRITISH VIRGIN ISLANDS
www.gettingthedealthrough.com 25
meets the specific requirements for registration. Once registered the
foreign judgment takes effect as a judgment obtained in a BVI court.
As such, the judgment is capable of being enforced in the same man-
ner as a local judgment, for example, by means of a charging order
or appointment of a liquidator.
9 Defences
Can a defendant raise merits-based defences to liability or to the
scope of the award entered in the foreign jurisdiction, or is the
defendant limited to more narrow grounds for challenging a foreign
judgment?
A defendant is prohibited from raising merits-based defences. Under
BVI law a foreign judgment that is final and conclusive on the merits
cannot be impeached for any error of fact or law. The BVI court will
not therefore engage in an examination of the merits of the claim. A
defendant is limited to narrow grounds as specified in the relevant
legislation or at common law. For example on the grounds of fraud,
the judgment being contrary to public policy or that the foreign
court lacked the requisite jurisdiction to adjudicate on the claim.
10 Injunctive relief
May a party obtain injunctive relief to prevent foreign judgment
enforcement proceedings in your jurisdiction?
A defendant may make an application to set aside the registration of
a judgment if the applicant satisfies the court of one of the following:
• thatanappealispending;
• thatheor she isentitledto and intendstoappeal against the
judgment; or
• thatatthedateoftheapplicationforregistrationthejudgment
was not enforceable in the foreign country.
The BVI court may then either:
• setasidetheregistration;or
• adjourn theapplicationfora period that it deems reasonably
sufficient to enable the applicant to take the necessary steps to
have the appeal disposed of by a competent tribunal.
11 Basic requirements for recognition
What are the basic mandatory requirements for recognition of a
foreign judgment?
There are three basic requirements that must be satisfied in order for
a foreign judgment to be registered:
• thejudgmentmusthaveemanatedfromoneofthejurisdictions
speciedintheReciprocalEnforcementofJudgmentsActorthe
ForeignJudgments(ReciprocalEnforcement)Act;
• thejudgmentmustbeforaspecicsumofmoney;and
• theapplicationforregistrationofthejudgmentwithintheBVI
must have been made within the specified time limit.
12 Other factors
May other non-mandatory factors for recognition of a foreign judgment
be considered and if so what factors?
No; factors that are be taken into consideration are specified and
are mandatory.
13 Procedural equivalence
Is there a requirement that the judicial proceedings where the
judgment was entered correspond to due process in your jurisdiction,
and if so, how is that requirement evaluated?
No.
14 Personal jurisdiction
Will the enforcing court examine whether the court where the
judgment was entered had personal jurisdiction over the defendant,
and if so, how is that requirement met?
Where the issue is raised, the BVI court will examine whether the
foreign court had the required jurisdiction over the judgment debtor.
A BVI court will refuse to register a foreign judgment where it is
proved that the court had no jurisdiction over the judgment debtor.
The court will have jurisdiction over the judgment debtor where:
• thejudgmentdebtorisordinarilyresidentinthejurisdictionor
carries on business in the jurisdiction (the common law position
is less stringent and appears to be satisfied merely by the judg-
ment debtor being present in the country at the time when the
proceedings were instituted);
• the judgment debtor voluntarily submitted to the jurisdiction
of the court as evidenced by their voluntarily appearing in the
proceedings;
• thejudgmentdebtoragreed,priortothecommencementofthe
proceedings, that they would submit to the jurisdiction of that
court in respect of the subject matter of the proceedings; and
• the judgment debtor was either the claimant or has counter-
claimed in the proceedings.
15 Subject-matter jurisdiction
Will the enforcing court examine whether the court where the
judgment was entered had subject-matter jurisdiction over the
controversy, and if so, how is that requirement met?
Where the issue of subject-matter jurisdiction is raised the court will
examine whether the foreign court had jurisdiction to act. The for-
eign court will be deemed to have jurisdiction where:
• thecourthaspersonaljurisdictionoverthepartiesifanyofthe
requirements for personal jurisdiction, as expressed above, is
met;
• thesubjectmatterofthedisputeisanactionofwhichthesubject
matter is moveable or immoveable property and the property
was at the time of the proceedings situated in the country of the
foreign court; and
• thepartiesagreedpriortothecommencementofproceedingsin
the foreign court that the foreign court would have jurisdiction
over the dispute.
16 Service
Must the defendant have been technically or formally served with
notice of the original action in the foreign jurisdiction, or is actual
notice sufficient? How much notice is usually considered sufficient?
In order for the judgment to be registered in the BVI the judgment
debtor must have been formally served in accordance with the service
requirements of the foreign country in which the original proceed-
ingswereheld.UndertheReciprocalEnforcementofJudgmentsAct
registration of the foreign judgment must be refused if the judgment
debtor was not duly served with the foreign proceedings and does
not appear. A similar requirement is found under the Arbitration
Act, which states that enforcement of an arbitration award may be
refused if the person against whom the award was made proves that
they were not given proper notice of either the appointment of the
arbitrator or the arbitration proceedings.
17 Fairness of foreign jurisdiction
Will the court consider the relative inconvenience of the foreign
jurisdiction to the defendant as a basis for declining to enforce a
foreign judgment?
The grounds upon which registration of a foreign judgment may be
refused are exhaustive and limited to those grounds specified in the
BRITISH VIRGIN ISLANDS O’Neal Webster
26 Getting the Deal Through – Enforcement of Foreign Judgments 2014
relevant legislation or at common law and do not include inconven-
ience to the defendant.
18 Vitiation by fraud
Will the court examine the foreign judgment for allegations of fraud
upon the defendant or the court?
One of the grounds for refusal to register a foreign judgment is that
the judgment has been obtained by means of fraud. Accordingly,
where there are allegations of fraud the BVI will examine whether
the foreign court had been deliberately misled. Where the BVI court
finds evidence of fraud it will refuse to register the judgment.
19 Public policy
Will the court examine the foreign judgment for consistency with the
enforcing jurisdiction’s public policy and substantive laws?
The BVI court will have regard to whether there has been an
impeachment of public policy. However, the scope is very narrow
and refusal on the grounds of public policy will only arise where
there has been a breach of the most basic notions of morality and
justice. However, a judgment cannot be impeached merely because
it is inconsistent with BVI law.
20 Conflicting decisions
What will the court do if the foreign judgment sought to be enforced
is in conflict with another final and conclusive judgment involving the
same parties or parties in privity?
A foreign judgment will not be recognised if it is inconsistent with
a previous final and conclusive decision of a BVI court, the foreign
court or competent court of a third jurisdiction.
21 Enforcement against third parties
Will a court apply the principles of agency or alter ego to enforce a
judgment against a party other than the named judgment debtor?
No.
22 Alternative dispute resolution
What will the court do if the parties had an enforceable agreement to
use alternative dispute resolution, and the defendant argues that this
requirement was not followed by the party seeking to enforce?
Except where the defendant has voluntarily submitted to the juris-
diction of the foreign court by voluntarily participating in proceed-
ings or they were the plaintiff or counterclaimed in the proceedings,
the BVI court will refuse registration of a foreign judgment where
the bringing of the proceedings in the foreign court is contrary to an
agreement between the parties that the dispute was to be settled by
alternative dispute resolution.
23 Favourably treated jurisdictions
Are judgments from some foreign jurisdictions given greater deference
than judgments from others? If so, why?
JudgmentsfromtheHighCourtofEnglandorNorthernIreland,the
Court of Session in Scotland; or a superior court in any one of the
countrieslistedintheForeignJudgments(ReciprocalEnforcement)
Act will be registered in the BVI once they meet the requirements for
registration and will be enforced in the same manner as judgments
oftheBVIcourts.Judgmentsfromthecourtsofotherjurisdictions
are not directly enforceable in the BVI and the judgment must be
sued upon in the BVI High Court. However, this will not involve
a re-litigation of the issues previously decided in the foreign court.
The aforementioned jurisdictions are specifically listed in the
relevant legislation as countries whose judgments can be directly
enforced.
24 Alteration of awards
Will a court ever recognise only part of a judgment, or alter or limit the
damage award?
Since the BVI court will only register certain types of judgments,
for example money judgments, if on the application for registration
of a judgment it appears to the BVI court that the judgment is in
respect of different matters and some, but not all, of the provisions
are of such a nature that if they were contained in a separate judg-
ment could properly be registered, the judgment may be registered
in respect of those provisions but not the others.
Paul Webster pwebster@onealwebster.com
Rhonda Brown rbrown@onealwebster.com
Simmonds Building Tel: +1 284 494 5808
30 DeCastro Street Fax: +1 284 494 5811
PO Box 961 www.onealwebster.com
Road Town
Tortola
British Virgin Islands
O’Neal Webster BRITISH VIRGIN ISLANDS
www.gettingthedealthrough.com 27
25 Currency, interest, costs
In recognising a foreign judgment, does the court convert the damage
award to local currency and take into account such factors as interest
and court costs and exchange controls? If interest claims are allowed,
which law governs the rate of interest?
Since the judgment will be enforced in the same manner as a judg-
ment of the courts of the BVI, where the judgment is in a currency
different from that of the BVI, the judgment is converted into US
dollars (the local currency of the BVI) on the basis of the rate of
exchange prevailing at the date the judgment was made in the origi-
nal foreign court. The sum for which a judgment is registered does
carry interest. The BVI court makes a distinction between pre-rec-
ognition and post-recognition rate of interest. Interest incurred prior
to the date of registration will be calculated at the rate of interest
specified by the foreign court in its judgment. However, the interest
rate after the registration of foreign judgment is the local interest
rateasspeciedintheJudgmentsAct(chapter35).
26 Security
Is there a right to appeal from a judgment recognising or enforcing
a foreign judgment? If so, what procedures, if any, are available to
ensure the judgment will be enforceable against the defendant if and
when it is affirmed?
An application may be made to the BVI court to set aside the regis-
tration of the judgment. However, the applicant must satisfy the BVI
court that an appeal is pending or they are entitled to and intend to
appeal the original judgment of the foreign court. If the applicant
is successful, the court may set aside registration of the judgment
entirely or it may adjourn the application to permit the defendant
sufficient time to have the appeal disposed of.
Where the original decision of the foreign court is affirmed, if
the registration of the foreign judgment had been set aside, a new
application may be brought for registration. Additionally, there is a
right of appeal to the Eastern Caribbean Court of Appeal.
27 Enforcement process
Once a foreign judgment is recognised, what is the process for
enforcing it in your jurisdiction?
Once the foreign judgment is registered in the BVI it may be enforced
in the same manner as any other judgment of a BVI court.
28 Pitfalls
What are the most common pitfalls in seeking recognition or
enforcement of a foreign judgment in your jurisdiction?
Not applicable.
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