If you have obtained a judgment or court order, you will want to enforce it in a jurisdiction where the judgment debtor has assets or is located. Methods of enforcing abroad depend largely on the nature of the judgment or order and where it is to be enforced.
Countries can conveniently be split into one or more of four categories which, in descending order of ease and convenience, are:
- countries to which the European Enforcement Order (EEO) Regulation applies;
- countries which have signed the Brussels Regulation or the Lugano Convention;
- countries with which the UK has a reciprocal agreement in place;
- countries for which none of the above apply - notably the USA, Japan and China.
This is the method of choice as it enables simple, quick enforcement within the EU. It can be used for money judgments obtained for uncontested claims. It should usually be used, when possible, in preference to other regimes which take longer and which are more complicated.
The EEO Regulation can be used if the debtor:
- agreed to the debt, and this has been approved by the court in a consent order;
- did not defend the claim at all, so there is a default judgment;
- did not defend the claim in court when it was tried.
A real benefit is that the application is made to the English court by completing a straightforward form plus the provision of a completed EEO certificate (which the court will issue), the judgment, any costs certificate and a document confirming service of the claim if applicable.
Once the EEO certificate is issued the judgment is treated as if it had been delivered by the court of the enforcing member state. Local methods of enforcement, on which local advice should be taken, can then be used.
The Brussels Regulation
This Regulation also applies to all EU countries. There are relatively straightforward procedures for the mutual recognition and enforcement of EU judgments. Generally, you should only use this method within the EU if the EEO Regulation method is not possible - for example, because you have a judgment resulting from a contested hearing or if you need to enforce a non-money judgment.
It only applies to judgments or orders in civil or commercial proceedings, and does not apply to criminal, bankruptcy or insolvency proceedings or proceedings involving the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession. It also does not apply to arbitration awards, including court orders which give judicial force to an arbitration award. For issues relating to the enforcement of arbitration awards generally, see the Out-Law guide to Best Practice in International Arbitration.
A drawback is that you make the application in the enforcing state – that is, abroad. You will need to file various documents, including the judgment and a certified translation. The exact procedure and requirements are governed by local law, so local advice should be taken.
As long as certain formalities are fulfilled, the enforcing court should declare the judgment enforceable without re-examining the case. However, once the judgment is recognised you still have to go on and take local enforcement steps on which you should take local advice.
Effective service on the debtor once recognition is obtained can be difficult since natural procedural rules may still apply despite the EU Service Regulation which harmonises service through the EU.
There are grounds of appeal. An appeal might be successful if, for example:
- the judgment goes against the public policy of the enforcing member state;
- the judgment is irreconcilable with an earlier judgment given in a member state involving the same causes of action and between the same parties.
Pending any appeal by the debtor you can, however, take measures to preserve assets in the enforcing member state.
The Lugano Convention
This governs the enforcement of judgments as between Iceland, Switzerland and Norway and all pre-2004 states, plus Poland. Except for Poland, the EU states that joined the EU on 1 May 2004 have not ratified the Lugano Convention.
It contains broadly the same provisions and the procedure is broadly the same as in the Brussels Regulation. However, unlike in the Brussels Regulation the court in the enforcing state may of its own volition refuse to recognise and thus enforce a judgment on a number of grounds including:
- public policy in that state;
- whether the debtor had sufficient time to respond to the original claim;
- the judgment is irreconcilable with a judgment given in a dispute between the same parties in the enforcing state, irrespective of the order in which these conflicting judgments were given.
Other reciprocal arrangements
The Administration of Justice Act and the Foreign Judgments (Reciprocal Enforcement) Act are the two main documents in this area. They mainly cover former and current Commonwealth countries, and include Crown states such as the Isle of Man and Jersey.
Broadly speaking, these Acts reflect reciprocal arrangements streamlining the enforcement of England and Wales judgments. The judgments must first be registered in the enforcing country.
The judgment must be final, for a specific sum, not in respect of fines or taxes, not obtained by fraud or in breach of a jurisdiction or arbitration agreement. Together with various other practical requirements, the registering court abroad must be satisfied that the England and Wales court had jurisdiction to deal with the original claim. This can be satisfied in a number of ways, including that the debtor:
- was resident in England or Wales or had its principal place of business or the place of business through which the relevant transaction was conducted in England or Wales;
- agreed to submit to the court's jurisdiction or voluntarily appeared in the proceedings.
Otherwise, the judgment should not be registered. If it has already been registered, it must be set aside if the debtor challenges the court's jurisdiction.
An application to register under the Administration of Justice Act must be made within 12 months of the date of the judgment, but an extension is possible. An application to register under the Foreign Judgments (Reciprocal Enforcement) Act must be made within six years - or, where there have been appeal proceedings, six years from the date of the last judgment given in those proceedings.
The judgment debtor can apply to set the judgement aside on various grounds under both Acts.
To which countries do these arrangements apply?
Brussels Regulation: all 27 member states of the EU plus Denmark.
Administration of Justice Act: Anguilla, Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda, Botswana, British Indian Territory, British Virgin Islands, Cayman Islands, Christmas Island, Cocos (Keeling) Islands, Dominica, Falkland Islands, Fiji, The Gambia, Ghana, Grenada, Guyana, Jamaica, Kenya, Kiribati, Lesotho, Malawi, Malaysia, Mauritius, Montserrat, New Zealand, Nigeria, Territory of Norfolk Island, Papua New Guinea, St Christopher and Nevia, St Helena, St Lucia, St Vincent and the Grenadines, Seychelles, Sierra Leone, Singapore, Solomon Islands, Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus, Sri Lanka, Swaziland, Tanzania, Tasmania, Trinidad and Tobago, Turks and Caicos Islands, Tuvalu, Uganda, Zambia, Zimbabwe.
Foreign Judgments (Reciprocal Enforcement) Act: India, Pakistan, Australia, Australian Capital Territory, Tonga, Guernsey, Isle of Man, Jersey, Israel, Surinam, Canada.
The common law
If none of the above regimes applies, there is no way of directly enforcing an England and Wales judgment abroad. The national or state law of the country or state in which you wish to enforce the judgment will apply. You will usually have to start new legal proceedings to obtain a judgment in that jurisdiction, for example in the USA. You should seek advice from foreign lawyers on this process.