Enforcement of Judgments 2024

Enforcement of Judgments: An Overview

A judgment that cannot be enforced is of very little 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 to locate assets against which to enforce, and the process for enforcement in the relevant jurisdiction(s). In a cross-border dispute, answers to these questions may drive the decision on where to sue.

Once the assets have been identified and located, important questions about the enforcement process in any relevant jurisdiction include:

• whether it is possible to enforce a judgment directly, without bringing a fresh claim;
• if it is necessary to bring a fresh claim, whether it is possible to rely on an existing judgment (or whether the enforcing jurisdiction will want to reopen the original dispute);
• how long the enforcement process will take and what will it cost; and
• the judgment debtor's scope to resist enforcement action (and how can this risk be minimised).

Obstacles to enforcement have the potential to adversely affect national and international commerce. For this reason, trading relationships often give 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 relatively frictionless environment for the enforcement of judgments of one member state in another member state under the Recast Brussels Regulation.

However, even where trading blocs have reached detailed agreements on the enforcement of judgments, these cannot possibly cover every situation. Cross-border enforcement is therefore often a complex topic.

And whatever the legal framework, national approaches often differ depending on things like the type of incoming judgment, the state of origin, the subject matter of the dispute, and whether the incoming judgment is interim or final.

Arbitral awards

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, and now has 172 contracting 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

The Hague Convention on Choice of Court Agreements 2005 (“Hague Convention 2005”) received much greater attention in the United Kingdom after the UK’s exit from the European Union and – as a result – the reciprocal enforcement regime of the Recast Brussels Regulation. Under the Hague Convention 2005, member states agree to recognise and enforce judgments given by the courts of other Hague Convention 2005 member states, where jurisdiction is based on an exclusive choice of court agreement between the parties. At time of writing (July 2024), the Hague Convention 2005 member states are the member states of the EU, the UK, Mexico, Montenegro, Singapore and Ukraine. China, Israel, North Macedonia and the United States have all signed but not ratified the Hague Convention 2005, so it is not in force for those countries.

The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Hague Judgments Convention 2019”) is intended to operate as a sister convention to the Hague Convention 2005, aiming to establish “a common framework for the global circulation of judgments in civil or commercial matters”. As with any international agreement, the extent to which the Hague Judgments Convention 2019 achieves this aim will depend on uptake.

The Hague Judgments Convention 2019 is currently in force between EU member states (other than Denmark) and Ukraine. It will come into force for Uruguay in October 2024, and for the UK on 1 July 2025 (although it will extend only to England and Wales).

The Hague Judgments Convention 2019 deals only with the enforcement of judgments, and not with the allocation of jurisdiction. As it is intended to be a sister convention to the Hague Convention 2005, it provides for the enforcement of judgments where jurisdiction is conferred by a non-exclusive jurisdiction agreement. It has a relatively wide subject matter scope so, depending on uptake, the Hague Judgments Convention 2019 has the potential to make international enforcement of judgments significantly easier and cheaper.

UN Convention for the Enforcement of Mediation Settlements (the “Singapore Mediation Convention”)

The international enforcement landscape is continually changing. This is driven in part by new conventions and/or new signatories to existing conventions.

The Singapore Mediation Convention has been open for signature since August 2019 and has now been signed by 58 states (including Brazil, China, India, Nigeria, the UK and the USA). It has come into force for 14 countries, but the EU has not yet signed, nor have any EU member states.

The Singapore Mediation 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 Singapore Mediation Convention to enforce the agreement.

Again, the success of the Singapore Mediation Convention will depend on international uptake. If the Singapore Mediation Convention is widely ratified, it will be interesting to see 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.