Enforcement of Foreign Judgments and Awards in England

1. Enforcement of Foreign Judgments and Awards in England Peter G. Bennett Partner Stephenson Harwood 1 Finsbury Circus London EC2M 7SH

2. 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 ?ommonwealth of Nations Foreign Judgments (Reciprocal Enforcements Act 1933) Brussels Regulation has priority

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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?

10. 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

11. 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

12. 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