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 Сommonwealth 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