The new Enforcement of Judgments guide provides the latest legal information on the identification of another party’s asset position, the costs and time involved in the enforcement of domestic and foreign judgments, challenges to enforcement, and the process of enforcing arbitral awards.
Last Updated: August 03, 2023
A judgment that cannot be enforced is of little or no value. It is therefore important for those involved in commercial disputes to understand, before embarking on legal proceedings, where an opponent’s assets are located, what judicial assistance (if any) will be available in locating assets against which to enforce, and the process for enforcement.
In a cross-border dispute, the answer to these questions may even determine where to sue. Subsidiary questions to consider are, for example, will it be possible to enforce a judgment directly, without bringing a fresh claim and, if it is necessary to bring a fresh claim, to what extent will it be possible to rely on an existing judgment, or will the enforcing jurisdiction want to reopen the original dispute? Equally, how long will the enforcement process be likely to take and what will it cost? Furthermore, what scope does the judgment debtor have to resist enforcement action – and how best can this risk be minimised?
Enforcement difficulties have the potential to affect adversely both national and international commerce. It is for this reason that trading relationships have often given rise to attempts to create a simplified enforcement environment. For example, the European Union relies to a significant extent on mutual respect for each member state’s judicial system. This is reflected in the attempt to create a relatively frictionless environment for the enforcement of the judgments of one member state in another member state.
At a cross-border level, enforcement is often a complex topic. National approaches differ to cross-border enforcement. Many jurisdictions have different cross-border enforcement regimes for different types of incoming judgments, depending, for example, on the state of origin, the subject matter of the judgment and whether the judgment is interim or final.
Even where trading blocs (such as the EU) have detailed agreements on the enforcement of judgments, they will not cover every situation.
The ease of enforcement of most arbitral awards is a relevant consideration when, before contracting, parties decide on their preferred form of dispute resolution. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards continues to attract new signatories. The Convention has now been ratified by over 170 states. It provides wide-ranging global coverage for the enforcement of certain arbitral awards and is one of the attractions of arbitration over court litigation.
Hague – Two Sister Conventions
Recently, the Hague Choice of Court Convention 2005 has gained more of a focus in the United Kingdom, given the UK’s exit from the European Union and that trading bloc’s reciprocal enforcement regime. Hague Choice of Court Convention member states agree reciprocally to recognise judgments in relation to claims where jurisdiction has been taken by the court of origin on the basis of an exclusive choice of court agreement. The EU, Mexico, Montenegro, Singapore, Ukraine and the UK have ratified the Convention. The UK ratified it in its own right when it left the EU. China, Israel, North Macedonia and the United States have signed, but not ratified, the Convention.
Not to be confused with the Hague Choice of Court Convention 2005 is the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the “Hague Judgments Convention”). It is to operate as a sister convention to the Choice of Court Convention, with significantly wider scope: it aims to establish “a common framework for the global circulation of judgments in civil or commercial matters” but, as commentators have already noted, it will only be a “game changer” in international dispute resolution if ratification is widespread.
Following the EU (except for Denmark) acceding to, and Ukraine ratifying, the Convention in August 2022, the Hague Judgments Convention will enter into force as between the EU (except Denmark) and Ukraine on 1 September 2023. The seven other signatories who have not yet ratified the Convention are Costa Rica, Israel, Montenegro, North Macedonia, Russia, the USA and Uruguay. Currently, no formal steps have been taken by the UK towards signing the Hague Judgments Convention, but it should not be ruled out in future.
Unlike the Hague Choice of Court Convention, the Hague Judgments Convention is not limited to reciprocal enforcement of judgments based on exclusive jurisdiction clauses. And employment and consumer contracts are within scope. If adopted by a significant number of states, it will have the potential to significantly improve international cross-border enforcement of court judgments, just as the New York Convention has done for arbitral awards over the past 60 years.
It will be interesting to see the international uptake and use for the enforcement of judgments of these two conventions. Certainly, they provide a potential platform for the enforcement of judgments on a wide global scale (similar to the New York Convention).
UN Convention for the Enforcement of Mediation Settlements (the Singapore Convention on Mediation)
The international enforcement landscape is continually changing. This is in part driven by new conventions and/or new signatories to existing conventions.
The UN Convention on International Settlement Agreements Resulting from Mediation has been open for signature since August 2019 in Singapore. It has now been signed by 56 states, including Brazil, China, India, Nigeria, the UK, and the USA. It has been ratified by Belarus, Ecuador, Fiji, Georgia, Honduras, Kazakhstan, Qatar, Saudi Arabia, Singapore Turkey and Uruguay. It entered into force in mid-September 2020, six months after ratification by three UN member states. The EU has not yet signed, nor have any EU member states.
The Convention provides for cross-border enforcement of mediation settlement agreements, similar to the New York Convention for arbitration awards. Someone seeking to rely on a mediated settlement agreement can apply directly to the competent authority of a state that is party to the Convention to enforce the agreement.
The success of the Convention will depend on uptake internationally. It will be interesting to see, first, which UN states ratify the Convention and, second, if the Convention is widely ratified, whether it leads to an increase in the use of mediation in relation to disputes arising from international transactions (including clauses in contracts requiring parties to mediate before a dispute escalates).
DISCLAIMER: The information in this practice guide is provided for general reference only, not as specific legal advice, nor should it be relied upon as such. Views expressed by the authors for each jurisdiction are their own (not those of the law firms in which they practise or of any other author or contributor to this guide). Each part of this guide has been produced independently by the relevant author(s) for that jurisdiction. For specific legal advice, a lawyer should always be consulted.