Analysis of the Role of the Brussels Regulation and Lugano Convention - Coursework Example

Advice for Strongsteel Inc: Strongsteel Inc., can enforce in England the judgment rendered by the Italian Court in its favor finding Tony liable fordamages in the amount of €5 million. The general rule is that Private International law allows enforcement of foreign judgment based on comity, reciprocity, and obligation and acquired right or vested right. 1 International enforcement of judgments is a necessary adjunct to international trade and commerce. Enforcement of foreign judgments in England provides in many cases a remedy to satisfy an order to pay damages against a domiciled defendant or a defendant that owns assets in England.2 The principal factor, which determines the applicable rules for enforcing a judgment in England from a foreign jurisdiction, is the identity of the court, which gives judgment (the "Adjudicating Court"). 3 The Italian judgment however is not automatically enforceable in English Court. Its registration is dependent on the English court being satisfied that particular conditions have been met. 4 The procedure for the registration of foreign judgments is that the judgment or certified copy, together with a translation into English of the original judgment if it is in a foreign language, is lodged with the High Court of Justice in England, together with an affidavit in support of the application for the judgment to be registered. 5 Accordingly, the litigant wishing to enforce the judgment must: 1. Issue new proceedings in England, for recognition of the foreign judgment in England; 2. Serve those proceedings upon the defendant either within the jurisdiction or outside the jurisdiction; 3. Rebut the availability of any defences said to be available to the Defendant, if any are raised. 4. Obtain Summary Judgment, on the basis of the foreign judgment. 5. Enforce the English judgment obtained by way of Summary Judgment against the assets of the Defendant either in the UK or in Europe. In the absence of either of these steps, a foreign judgment has no force or effect in England. There can be recognition without enforcement, but never enforcement without recognition. 6 The application is made without notice (ex-parte) by lodging papers with the Masters Secretarys Department. The conditions of the applicable Act must be complied with. 7 The Applicable Acts are as follows: 1).European Judgments - Judgments of foreign States signatories to the Judgments Regulation 2000 (which replaced the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 1968 for all EU countries save for Denmark) and the Lugano Convention which applies to EFTA countries; (2) Judgments of Commonwealth States and States with which the UK has a bilateral Treaty; and (3) Judgments from courts of foreign States with which there is no treaty. 8 There are three statutory schemes providing for the enforcement of foreign judgments in England and Wales. They are: 1. The Administration of Justice Act 1920; 2. The Foreign Judgments (Reciprocal Enforcement) Act 1933; and 3. The Civil Jurisdiction and Judgments Act 1982 (incorporating into English Law, as appropriate, the provisions of the Brussels & Lugano Conventions and Council Regulation (EC) No. 44/2001 ("the Jurisdiction and Judgments Regulation”). 9 The above statutory schemes and enforcement at common law are not mutually exclusive. 10 The Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, ("the Brussels Convention") was agreed on 27 September 1968 by the (then) six Member States of the European Economic Community. It sought to avoid parallel legal proceedings within the Community, to simplify the recognition and enforcement of judgments and to strengthen the legal protection afforded to citizens of the Member States. It included detailed rules dealing with the circumstances under which the courts in the Member States might exercise jurisdiction and rules addressing specific civil and commercial legal areas including contract, tort and maintenance. It was amended and extended on subsequent occasions following the accession of the United Kingdom and other states to the European Community. Effect was given to the Convention in the United Kingdom by the Civil Jurisdiction and Judgments Act 1982, which came fully into force on 1 January 1987. 11 The Brussels I Regulation replaced the Brussels Convention. It came into force on 1 March 2002 and applies to all Member States of the European Union with the exception of Denmark, which does not participate in measures adopted under Title IV of the Treaty establishing the European Community. Denmark has concluded a separate agreement with the European Community, the effect of which is to extend the Regulations rules to Denmark. 12 The Brussels Regulation applies to all EU countries and there are straight forward procedures whereby a judgment obtained in one EU country can be recognized and enforced in another EU country; there is no question of reassessing the merits. 13 Not all foreign judgments will be recognized, for example, if:- the judgment is contrary to English public law; the judgment is irreconcilable with an earlier judgment given in England or Wales involving the same causes of action and between the same parties. 14 If the judgment debtor objects to the registration of the foreign judgment, measures can still be taken to preserve the assets of the judgment debtor. 15 A claimant who has obtained a judgment from a member state can enforce that judgment in all other member states without issuing separate proceedings and the relevant procedures are governed by local law. 16 The Lugano Convention (applies to EFTA countries and it governs their relations with the EU) contains broadly the same provisions as the Brussels Regulation. 17 Court rules do not stipulate a timeframe by which the application must be received after the judgment has been made.18 The scope of the Brussels regime was also extended by the Lugano Convention, concluded on 16 September 1988 between the (then) 12 Member States of the Community and the (then) six Member States of the European Free Trade Association. The Lugano Convention covers the same subject matters as the Brussels Convention, now the Brussels I Regulation. Its effect is to create common rules regarding jurisdiction and judgments across a single legal space consisting of the Member States (including Denmark) and the three European Free Trade Association states of Iceland, Norway and Switzerland. (Liechtenstein, which joined the European Free Trade Association in 1991, is not party to the Lugano Convention.) The Lugano Convention was given effect in the United Kingdom in 1991. An amended Lugano Convention was agreed by the Community on 27 November 2008, and is about to be ratified. 19 The Conventions (insofar as relevant to this survey) only apply to the recognition and enforcement of judgments made in proceedings started after the Conventions have been ratified and enacted by both countries concerned, i.e., the country of judgment and the country of recognition. Judgments from proceedings instituted prior to such date may however be recognized and enforced if the country of judgment assumed jurisdiction based upon the grounds set out in the appropriate Convention. The terms of the Lugano Convention must be applied where either the country of judgment or the country of enforcement is an EFTA country. 20 Anent the concepts of recognition and enforcement of foreign judgment, Article 25 under Title III of the Brussels Convention provides that " For the purposes of this Convention, `judgment means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court. 21 Article 26 also provides that " A judgment given in a Contracting State shall be recognized in the other Contracting States without any special procedure being required.22 In general terms, the policy aims of the Regulation are designed to further the development of an area of freedom, security and justice and the operation of the internal market. This aim includes in particular the establishment of a system of predictable and appropriate jurisdictional rules, which are generally based on the location of a defendant’s domicile. The machinery for the recognition and enforcement of judgments is founded upon the principle of mutual trust between the Member States. 23 Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgment be recognized. If the outcome of proceedings in a court of a Contracting State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.24 Under the Administration of Justice Act 1920 and subsequent legislation, judgments obtained in the Superior Courts in many parts of Her Majestys Dominions outside the UK may be registered by a similar procedure to that applicable to European judgments. 25 This Act applies to various countries within the Commonwealth, such as New Zealand, Singapore and Zimbabwe. Under the Foreign Judgments (Reciprocal Enforcement) Act 1933, judgments obtained in the courts of specified foreign countries may also be registered in this country. The 1933 Act allows the judgments of higher courts in the countries with which the UK has entered into bilateral treaties to be enforced by registration. The States falling under this Act include Australia, Canada, Guernsey and India. 26 Under Section 2 paragraph 1 of Foreign Judgments (Reciprocal Enforcement) Act 1933, it is provided that "A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the High Court at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court, and on any such application the court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered: Provided that a judgment shall not be registered if at the date of the application—(a)it has been wholly satisfied; or(b)it could not be enforced by execution in the country of the original court". 27 One can bring an action to enforce judgment of countries with whom it has no reciprocal enforcement treaty and which are not party to the Convention. There is, for example, no treaty between the United Kingdom and the United States of America. The action to enforce the judgment is an action at common law. In contrast to the Brussels Convention, the common law rules are more restrictive.28 The foreign judgment is the cause of action and an application can be made for summary judgment on the grounds that there is no defense to the action. In order for a foreign judgment to be enforced the English courts must be satisfied that the foreign court had jurisdiction to render the judgment according to the English rules of private international law. 29 In a nutshell, the English courts requirements for jurisdiction are that:-   1. The defendant in the enforcement proceedings in England was resident or, if a body corporate, had a place of business (or perhaps was present) in the country of the foreign court which gave judgment;  2. The defendant to the enforcement proceedings was the plaintiff or counterclaimed in the proceedings in the foreign court; 3. The defendant agreed to submit to the jurisdiction of the foreign court; The defendant submitted to the jurisdiction of the foreign court (by taking an active step in the proceedings other than in relation to (i) property which had been seized or (ii) disputing the jurisdiction of the foreign court);  4. The foreign judgment is final and conclusive; The claim in the English proceedings is to enforce a judgment for a definite sum of money (this includes a final order for costs). This does not include taxes, fines or penalties (s1 (2) and s 11(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933);  5. The defendant was served with the process of the foreign court and judgment was not obtained by fraud or any cause of action which is contrary to the public policy of England. 30 An European Enforcement Order (EEO) is available for enforcing judgments obtained in uncontested claims in the EU. For example, a judgment creditor can obtain an EEO if the debtor has either agreed to the debt (and this has been approved by the court) or not appeared in court when the claim is heard.31 It is designed to provide a simpler and quicker enforcement mechanism than the existing procedure under the Brussels Regulation. The EEO works on the basis of mutual recognition so that a judgment issued in one Member State is enforced in a second Member State without the need for a registration procedure or judicial approval in the second Member State. A judgment that has been certified, as an EEO by the court of origin should, for enforcement purposes, be treated as having been rendered by the courts of England & Wales. 32 Assuming those conditions are met, an order will be given for the judgment to be registered. Notice is then given to the defendant that the judgment has been registered and that the defendant has 21 days in which to apply to set aside the registration. The Notice must be served personally on the defendant. If an application is made there will be a hearing before the Master in the Queens Bench Division of the High Court.33 There are differences in procedures depending on which category the country where the judgment was obtained sits, and consequently the ease with which a foreign judgment can be enforced in England and Wales will therefore depend upon which of the above categories apply.34 Italy and United Kingdom are signatories to the Brussels Regulation and Lugano Convention as listed in the work of Coleman. 35 Brussels Regulation and Lugano Convention were replaced by Judgments Regulation 2000, which lays down rules governing the jurisdiction of courts in civil and commercial matters. 36 Requirements of the Brussels Regulation The two requirements for the recognition or enforcement of judgments which were given on or after March 1, 2002, under the Brussels Regulation are: i) The Judgment must be made by a Court of a Member State; and ii) The Judgment must be in respect of a civil or commercial matter. 37 A judgment given in an European Union (EU) country is to be recognized without special proceedings, unless the recognition is contested. A declaration that a foreign judgment is enforceable is to be issued following purely formal checks of the documents supplied. The regulation lists grounds for non-enforcement; however, courts are not to raise these of their own motion. The regulation does not cover revenue, customs or administrative matters. Neither does it apply to: the status or legal capacity of natural persons, matrimonial matters, wills and succession; bankruptcy; social security; arbitration. 38 "Judgment" means any judgment given by a court or tribunal of an EU country, whatever the judgment may be called, including a decree, order, decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as to its substance. A judgment will not be recognized if: such recognition is manifestly contrary to public policy in the EU country in which recognition is sought; the defendant was not served with the document that instituted the proceedings in sufficient time and in such a way as to enable the defendant to arrange for his/her defense; it is irreconcilable with a judgment given in a dispute between the same parties in the EU country in which recognition is sought; it is irreconcilable with an earlier judgment given in another EU or non-EU country involving the same cause of action and the same parties. 39 A judgment obtained in a foreign court is prima facie enforceable in England. If the judgment is overturned on appeal in the originating jurisdiction, it ceases to be enforceable in England. Thus a judgment creditor is entitled to enforce a foreign judgment in an English court where: 1. The foreign court was competent to hear the dispute, that is, the matter was within its jurisdiction. The person may have been domiciled in the country in question, submitted to the jurisdiction of the court (but not merely for the purpose of contesting the jurisdiction of the foreign court) or entered into a jurisdiction agreement subjecting him to the jurisdiction of the country’s courts. Each of these gives jurisdiction over the defendant on separate grounds. Corporate defendants are, as a general rule considered to be present in jurisdiction where they have maintained a fixed place of business at their own expense, using their own employees or consultants, or where a representative has been carrying on the corporation’s business from a fixed address for more than a minimal period of time. 2. The judgment in question is final and conclusive on its merits. That is to say, that the judgment is not an interim judgment, and the decision would not be reconsidered by the court, in which it was made, or varied by the court that made it, Simply because a decision may be appealed does not deprive it of retaining the nature of being a final and conclusive judgment. 3. The judgment is for a fixed sum of money, which is not a tax or a penalty. English courts will not operate to enforce revenue laws of a foreign state, nor will they enforce a sum payable to a foreign state. The sum must be payable to a private individual or company within the meaning of English private international law. 4. The defendant to the English proceedings does not make out a defense to enforcement available to it.40 The circumstances in which an English court would consider a foreign court to have competent jurisdiction to make an order in respect of individuals as well as corporate entities was clearly set out by the Court of Appeal in Adams v Cape Industries Plc [1990] (Ch) 433. 41 In the case of individuals, the competence of the foreign court would depend on the physical presence of the debtor at the time of the foreign proceedings. The court held that the voluntary presence of an individual in a foreign country, whether permanent or temporary, and whether or not he was in residence, is sufficient grounds to give the foreign court jurisdiction to make an order under English rules of private international law. 42 In the case of a foreign judgment given against a corporate body, the English courts would consider the foreign court to have had jurisdiction, if it could be established that the corporate body had sufficient connection by way of having a fixed place of business for a minimal period of time. In other words, it needs to be established that the jurisdiction of the foreign court is determined by considering whether the company has a sufficiently close connection with England and Wales.43 A judgment that includes an enforceable decision on the amount of costs related to the court proceedings may also be certified with regard to the costs unless the debtor has specifically objected to his obligation to bear such costs. The certificate can also be rectified if there is a discrepancy between the judgment and the certificate, or withdrawn where it was clearly wrongly granted. Nor is there any appeal against the judgment relating to certification. The certificate takes effect only within the limits of the enforceability of the judgment. 44 The Regulation lays down minimum standards with regard to the service of documents (the document instituting proceedings and, where applicable, the summons to a court hearing) to ensure that the rights of the defense are respected. Only the document service methods listed in the Regulation are allowed if the judgment is to be certified as a European enforcement order.45 Furthermore, the document instituting proceedings must give details of: the claim (personal details of parties, amount of the claim, whether or not interest is incurred and for what period, etc.); the procedural arrangements required for contesting the claim (deadline for contesting the claim, consequences of failing to object, etc.). The Regulation allows non-compliance with these requirements to be remedied, subject to certain conditions. For a judgment to be certified as a European enforcement order, the Member State of origin must provide for review in exceptional cases. 46 An application for registration under the Judgments Regulation or the Lugano Convention must, in addition to the evidence required by that Regulation or that Convention, be supported by the evidence required. 47 The application must be supported by translation into English of the judgment if the same was not in English (i) certified by a notary public or other qualified person; or (ii) accompanied by written evidence confirming that the translation is accurate. 48 For the purposes of registering judgments, Member States of the European Union have a special status in England. A judgment obtained in any Member State of the European Union may be enforced with relative ease in England through an expedited procedure made available under the. Decrees, orders, decisions, writs of execution and costs orders emanating form Member States may be enforced under the Judgments Regulation. 49 Applications must be supported by evidence. Although particular requirements vary, the evidence requires: 1. the names and addresses of the judgment creditor and debtor; 2. an address for service in England of the judgment creditor; 3. the grounds upon which the applicant alleges it is entitled to have the judgment recognised in England; 4. the sum outstanding on the judgment, if debt recovery is sought, including any interest accrued and the rate, amounts and relevant dates to calculate interest; 5. notarized copies of: 6. the judgment of the foreign court (i.e. an apostille); 7. a translation of the judgment if it is not in English 50 Applications may be made without notice to a Master of the Queens Bench Division of the High Court. These applications are supported by written evidence to prove the force and effect of the foreign judgment.51 Registration of a judgment serves as a decision that the judgment is recognized for the purposes of the 1982 Act, the Lugano Convention and the Judgments Regulation. An application for recognition of a judgment is governed by the same rules as an application for registration of a judgment under the 1982 Act, the Lugano Convention or the Judgments Regulation, 52 In the given case, Court of England has jurisdiction over the suit of Strongsteel Inc. for enforcement of the judgment of the Italian Court because in the latter court Strongsteel Inc. was the plaintiff and Tony was the defendant. Hence, this fact complies with one of the requirements before the English Court will take cognizance of the action. The judgment ought to be enforced in the court of England is a judgment rendered by the Italian Court. This complies the other requirement since Italy is one of the signatories in the Brussels Convention and enforcement of judgment under the convention by contracting state and enforceable in that state is also enforceable in another contracting state. And that the judgment rendered was final and conclusive. In order to ensure that the judgment sought to be enforced in England be recognized, it has to comply with the requirements of providing information as to who is he defendant and his address and serving the notice to him. It has to make sure that the copy of the judgment rendered by the Italian Court was notarized. In case the judgment rendered by the Italian court was not written in English, a translation of the same be made and certified by the notary public or other qualified person and or accompanied by written evidence confirming that the translation is accurate. Enforcement action may be taken against the following assets: Bank accounts by use of the third party debt (or garnishee) order procedure. Tangible movable property by use of distraint or execution. Registered means of transport by use of distraint or execution. Immovable property by use of the charging order procedure. Salaries or wages by use of the attachment of earnings procedure. 53 Word Count: 4000 BIBLIOGRAPHY WEBSITE WITH AUTHORS Coleman, Lavelle. Enforcement of Foereign Judgment in England and Wales. 2009. Available at Lavelle Coleman Website. [Accessed: May 11, 2011]. Website: http://www.lavellecoleman.ie/cuuploads/editor/file/EnforcementofForeignJudgementsinEnglandandWales.pdf Ellis, L. Enforcement of Overseas Judgment in England. Available at Ezine Articles Website. [Accessed: Amy 12, 2011]. Website: http://ezinearticles.com/?Enforcement-of-Overseas-Judgments-in-England&id=5149881 Millar, Christopher. United Kingdom-Enforcement of Money Judgments. Available at Juris Publishing Inc. Website,[Accessed: May 12, 2011]. Website: http://www.jurispub.com/cart.php?m=product_detail&p=6214 Mercatoria, Lex, Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968. Available at Lex Mercatoria Organization Website. [Accessed: may 12, 2011]. Website: http://www.jus.uio.no/lm/brussels.jurisdiction.and.enforcement.of.judgments.in.civil.and.commercial.matters.convention.1968/doc.html Loble, Stephen. Enforcement of Foreign Judgments in England. Available at Stephen Loble Website. [Accessed: May 11, 2011]. Website: http://www.loble.co.uk/enforcement_of_foreign_judgments.htm Sinsuppraroek, Jantree. Recognition and Enforcement of Foreign Judgment in Thailand. [Accessed: May 11, 2011]. Available at website: http://www.ialsnet.org/meetings/business/SinsuppraroekJantree-Thailand.pdf WEBSITE WITH NO AUTHORS Advice Note: Enforcing Foreign Judgment in England and Wales. Available at Pinsent Masons Website. [Accessed: Ma7 12, 2011]. Website: http://www.pinsentmasons.com/PDF/EnforcingforeignjudgmentsinEngland.pdf Cross Border Insolvency. Chapter 2. England and Wales. Available at Insol Organization Website, [Accessed: May 12, 2011]. Website: http://www.insol.org/pdf/cross_pdfs/Eng&Wales.pdf Dispute Resolution Multi-jurisdictional guide: enforcing UK judgments. Available at Practical Law Company Website. [Accessed: May 12, 2011]. Website: http://dispute.practicallaw.com/0-503-2581?source=relatedcontent Enforcement of Judgment in England. February 9, 2005. Available at Goliath Business Knowledge on Demand Website. [Accessed: May 12, 2011]. Website: http://goliath.ecnext.com/coms2/gi_0199-3711092/Enforcement-of-Judgments-in-England.html European Enforcement Order for Uncontested Claims. Available at Europa Summaries of EU Legislation Website.[Accessed: May 12, 2011]. 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Website: http://www.iln.com/articles/pub_224.pdf Jurisdiction, Recognition and Enforcement of Judgment in Civil and Commercial Matters (Brussels I). September 7, 2010. Available at Europa Website. [Accessed: May 11, 2011]. Website: http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters/l33054_en.htm Mondac Business Briefing, Enforcement of Judgments in England. February 9, 2005. Available at Goliath Business Knowledge on Demand Website, {Accessed: May 12, 2011]. Website: http://goliath.ecnext.com/coms2/gi_0199-3711092/Enforcement-of-Judgments-in-England.html Part 74. Enforcement Of Judgments in Different Jurisdiction. Available at Justice Website, [Accessed: May 12, 2011]. Website: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part74.htm#IDAJKTIC Revision of Brussels I Regulation: how should uk approach the negotiation. Available at Ministry of Justice Website. [Accessed: May 12, 2011]. Website: http://www.justice.gov.uk/docs/brussels-I-european-commission-proposa.pdf Read More