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