Peter Bennett (Stephenson Harwood, London)
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Transcript Peter Bennett (Stephenson Harwood, London)
Enforcement of Foreign Judgments and Awards in
England
Peter G. Bennett
Partner
Stephenson Harwood
1 Finsbury Circus
London
EC2M 7SH
1. The Legislative Framework - Judgments
Reciprocal Enforcement Treaties
– Brussels Regulation – EC44/2001
– All EU Member States including the Republic of Cyprus
but excluding North Cyprus
Lugano Conventions 1988 and 2007
– All pre 2004 EU Member States plus Poland, Iceland,
Switzerland and Norway
Administration of Justice Act 1920
– BVI, Cayman Islands, and members of the former British
Сommonwealth of Nations
Foreign Judgments (Reciprocal Enforcements Act 1933)
Brussels Regulation has priority
2. The Legislative Framework - Arbitrations
Reciprocal Enforcement Treaties
New York Convention 1958
Currently 145 parties including Russia, Sweden,
Cyprus, Switzerland, Cayman Islands and England
Reservations – commercial and reciprocity. Russia has
a reciprocity reservation
Geneva Convention 1927
– S66 Arbitration Act 1996 and Part II of the 1950 Act
– Limited application in view of the New York Convention
International Centre for Settlement of Investment Disputes
(”ICSID”) – the Washington Convention 1966
S66 Arbitration Act 1996
”Action on the award” – preserved under s104 Arbitration
Act 1996
3. Status of Russian Judgments and Awards
Judgments
– Russia is not a party to any Treaty with England
– Enforcement in England would need to be under English
common law through an ”action on the judgment”
Arbitration Awards
– New York Convention reciprocity between England and
Russia
– SS99-104 of the Arbitration Act 1996
– ”Action on the award” at common law
Judgement and awards
– Pre and post judgment and award freezing orders
– Available to foreign arbitrations and court process
– Available to the Russian process but strict requirements
4. Enforcement in England under the
Brussels Regulation
Enforcement is immediate
Freezing order relief available
The judgment court decision cannot be challenged before
the enforcing court
Enforcement order can be challenged:– Contrary to public policy
– Default judgments – not valid service
– Irreconcilable with enforcing or judgment state
judgments
– Conflicts with or outside the Brussels Regulation
Challenging the Enforcement order:– Follow the time limits strictly
– Apply to stay were the judgment courts decision has or is
being challenged
5. Enforcement under the 1920 and 1933
Acts
Formalities to register the foreign judgment
Registration = immediate enforcement
Methods of enforcement as an English judgment
Freezing order relief available
Grounds for non-registration and challenge:– The judgment court had no jurisdiction
– Defendant not ordinarily carrying on business or resident
in the jurisdiction (1920 Act only)
– Failure to give notice of proceedings in the judgment
court
– Fraud
– Appeal against the judgment
– Public policy
6. Enforcement at Common Law
Final and conclusive money judgment. A debt
The foreign court had jurisdiction
In England - new action on the debt – Freezing order relief
English Court must have jurisdiction
Summary judgment
Defences:– Jurisdiction, public policy, not final and conclusive
– Judgment in breach of an arbitration clause
– Fraud
– Conflicts with prior English judgment
– Not for a fixed sum of money
– A foreign penal or revenue law
7. Enforcement under the New York
Convention ss100-103 Arbitration Act 1996
Recognition and enforcement obtained without notice
Freezing and ancillary relief
Permitted after a specified time i.e. within 14 or 21 days
No power to cure a deficiency in the award or correct error
Permission cannot be granted against a party not named within
the award
Grounds for challenge:– Party incapacity or invalid arbitration agreement
– Improper notice of arbitrator appointment
– Award outside the reference
– Tribunal not composed correctly
– Award not binding, has been set aside or suspended
– Public policy
Applications to challenge made within the permitted time
8. Enforcement - Key Points to Consider
From which jurisdiction?
Is it final?
Did the Court or Tribunal have jurisdiction and any rulings?
Steps to protect the award or judgment process?
Where does the defendant have assets?
Pre and post award / judgment freezing and ancillary relief
If England:
– Judgment. Reciprocal enforcement treaty or action on the
judgment
– Arbitration award. New York Convention or action on the
award?
More than one jurisdiction in which to enforce?
Advantages as between different jurisdictions in which to
enforce?
9. Resisting – Key Points to Consider
Challenges in the judgment or award proceedings?
Challenging a final judgment or award?
Can I arrange my business affairs in a manner which
legitimately minimises any impact of attempts to enforce
any foreign judgment or award?
– Escrow agreements
– Settlement
Can I frustrate the judgement or award process?
Protect your grounds to challenge
Security under the Arbitration Act 1996
10. Enforcement Process in England
Third party debt orders
Warrants of execution
Receivers
Charging Orders
Freezing and ancillary relief
– Assets within and outside the jurisdiction
– Does not secure the assets. Prevents dissipation
– Beneficially entitled
– State Immunity
– Conflict with overseas proceedings
– The need for recognition and enforcement outside the
jurisdiction
Insolvency and liquidation
11. Recent Experience in England
Foreign States, their entities and assets
State Immunity Act 1978
Challenging the original jurisdiction
Fraud, illegality, and public policy
Ancillary relief in share corporate disputes
Enforcing a judgment in breach of an
arbitration clause
Security for costs
Judgement interest on the order for
enforcement