Getting a judgment or award does not automatically mean getting paid. Particularly where judgment or award debtors are in less familiar jurisdictions, there can be a strong incentive to delay or avoid payment. From the perspective of the debtor, there is little difference between being in default under a contract and being in default under a judgment or award. In such cases, obtaining judgment is simply the first step toward recovery. It is critical, therefore, for claimants and their legal representatives to consider recognition and enforcement at the outset of proceedings to ensure that the judgment can be monetized effectively.

Frequently, effective enforcement will take place not where the debtor is located, but where their assets are. Before issuing proceedings, claimants should identify whether the defendant has sufficient assets to satisfy a judgment and, if so, whether such assets are available for the purposes of enforcement. In this regard, claimants should be aware that in a number of jurisdictions, they can seek a wide range of injunctive relief that can help to: (i) identify and locate the defendant’s assets; and (ii) prevent the defendant from moving, dissipating, or concealing their assets. Certain forms of relief are available before judgment is handed down, so this can be a powerful tool for claimants in identifying and preserving assets for the purposes of enforcement. These interim measures will be the focus of articles later in the series.

It is often the case that debtors hold assets across multiple jurisdictions, adding a further layer of complexity to the recovery process. This paper aims to simplify this issue and summarizes some of the key enforcement considerations and procedures in several major jurisdictions.

England and Wales

Overview

England and Wales has long had a reputation for being an enforcement-friendly jurisdiction. Indeed, English courts have historically shown their willingness to assist judgment creditors in their efforts to enforce unpaid judgments against recalcitrant debtors at every opportunity. Below, we take a look at the enforcement tools at the disposal of the English courts and how English judgment creditors can seek to export and monetize their judgments/awards internationally.

The landscape for recognition and enforcement of foreign judgments in England and Wales, and vice versa, has changed dramatically since Brexit. After leaving the European Union, England and Wales (and the rest of the United Kingdom) lost the benefits of the judgment enforcement regimes provided by Regulation (EU) No 1215/2012 (“Brussels Recast”) as well as the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 (“Lugano Convention”) in relation to proceedings issued after the end of the transition period (December 31, 2020). Prior to Brexit, Brussels Recast offered the United Kingdom a simplified procedure for the mutual recognition and enforcement of non-excluded judgments issued by the courts of any European Union Member State. Further, the Lugano Convention, to which the United Kingdom was subject via its membership in the European Union, operated in a similar manner to Brussels Recast but also included Switzerland, Norway, and Iceland as members. The United Kingdom applied to join the Lugano Convention in its own right on April 8, 2020, but its accession was blocked by the European Union in May 2021.

Following Brexit, the recognition and enforcement of English judgments in EU Member States, and vice versa, has become more complex, with parties having to navigate several different legal systems and procedural requirements. In England and Wales, this takes the form of common law rules on recognition and enforcement of judgments (described below), which offer judgment creditors less certainty and can lead to additional costs. There are also a handful of more niche statutory enforcement regimes available to the English courts but, as explained further below, they are very limited in scope.

The United Kingdom has also acceded to a multilateral recognition and enforcement treaty: Hague Convention of June 30, 2005, on Choice of Court Agreements (“Hague 2005”). The benefits and limitations of this Convention are set out below.

The position in respect of recognition and enforcement of arbitral awards is completely different to that of judgments. Enforcement of arbitral awards in England and Wales (and internationally) is primarily governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958) (“New York Convention”).

Regimes for Recognition and Enforcement

Judgments

Brussels Recast and Lugano Convention

Following Brexit, Brussels Recast and the Lugano Convention will apply only to the mutual recognition and enforcement of judgments between the United Kingdom and any other contracting state in circumstances where the underlying proceedings were issued before the end of the transition period. These regimes are addressed in more detail in the “France” section.

Common Law

Aside from the various statutory schemes that give effect to judgments of certain foreign countries in England, there are also the common law rules and principles that currently govern the vast majority of recognition and enforcement proceedings before the English courts. The key difference between the common law and statutory regimes is that, as a matter of common law, a foreign judgment cannot be enforced or executed upon in England—only an English judgment can. Under the common law, the principal function of a foreign judgment is that it provides a cause of action that may be relied upon in English proceedings to obtain an English judgment. It is this English judgment that may then be enforced in England.

For a judgment to be entitled to be recognized in England and Wales, it must be final and binding, on the merits and handed down by a court considered as competent under English law. In order to be enforceable as a debt, the judgment must also be for a fixed sum of money.

1920 and 1933 Acts

Judgments from certain foreign countries may be enforced under the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the “1920 Act” and “1933 Act” respectively). Where these enforcement procedures are available, there is no need to bring an action at common law; rather, the foreign judgment itself will be recognized and enforced in England and Wales (as if it were an English judgment). That said, procedurally, the provisions of the 1920 Act and 1933 Act largely reflect the common law, with an improved mechanism for enforcement.

The 1920 Act applies to the enforcement of certain judgments from the courts of several British Overseas Territories and Commonwealth jurisdictions. Pursuant to Section 12 of the 1920 Act, the judgment to be enforced must be made in civil proceedings and be for a fixed sum of money.

The 1933 Act applies to the recognition and enforcement of judgments from countries with which a bilateral treaty is in place (and that has been enacted into domestic law), including certain European countries. As the arrangements for each country are made on the basis of a bilateral treaty, the treaty itself must be analyzed to determine precisely which courts are covered.

1982 Act: Hague 2005 and Hague 2019

The Civil Jurisdiction and Judgments Act 1982 (the “1982 Act”) was primarily devised for judgments to which Brussels Recast and the Lugano Convention applied, but it now provides a basis for giving effect to judgments falling under Hague Conventions and other international instruments.

Section 4B of the 1982 Act provides for the registration of judgments that fall within the scope of Hague 2005. Hague 2005 applies to judgments on the merits from a court that was designated by an exclusive choice of court agreement made in writing after the Convention entered into force for the relevant contracting country. The jurisdiction agreement must have been exclusive, i.e., binding on the parties in relation to the particular claim that was before the foreign court. Further, the judgment must have been given by the designated court in civil or commercial proceedings, which were issued after Hague 2005 came into effect for that country.

On January 12, 2024, the United Kingdom also signed up to the Hague Convention of July 2, 2019, on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Hague 2019”). Hague 2019 promises to be a significant global enforcement framework, and will come into effect for the United Kingdom on July 1, 2025. For more information on Hague 2019, please read our recent Commentary.

Bilateral Treaties

The United Kingdom has signed several bilateral treaties with various other countries that govern the mutual recognition and enforcement of judgments. While not covered in detail in this paper, when considering which regime applies to foreign judgments, one must consider whether the United Kingdom has signed a bilateral treaty with the country in which the judgment was handed down.

Arbitration

New York Convention

Unlike litigation, international arbitration benefits from a widereaching, comprehensive recognition and enforcement regime in the form of the New York Convention. With more than 170 countries as signatories, the New York Convention is considered not only one of the most effective enforcement regimes in the world, but also one of the most effective private international law instruments in history. The Convention provides for, inter alia, the mutual recognition and enforcement of international arbitral awards by signatory states, containing a general obligation on each state to recognize arbitral awards of other contracting states as binding and to enforce them in accordance with domestic laws. In England and Wales, the New York Convention has been implemented into national legislation under sections 100 to 104 of the Arbitration Act 1996 (the “1996 Act”).

Section 66 of the 1996 Act

Section 66 provides for enforcement of all domestic and foreign awards, regardless of the seat. It provides that an award may be enforced in the same manner as a judgment or order of the court. Section 66 is most frequently used in respect of awards made in England but is also available with respect to an award made outside of the New York Convention.

Enforcement under this summary procedure is more tricky than under the New York Convention, which has far more limited grounds for refusing recognition and enforcement. It is generally accepted that a party should consider applying for enforcement under Section 66 only if it is not possible to bring enforcement proceedings under the New York Convention.

Other International Enforcement Regimes

Although not covered in detail in this paper, there are some very limited circumstances in which the New York Convention does not apply to the enforcement of arbitral awards.

1. There are a small number of countries that are not signatories to the New York Convention but are signatories to the Geneva Convention on the Execution of Foreign Arbitral Awards 1927.
2. The New York Convention does not apply to ICSID awards, which have their own mechanisms for challenge and enforcement.

Procedure

Judgments

Common Law

At common law, a foreign judgment gives rise to an obligation that can be enforced in English legal proceedings by issuing a new claim under CPR Part 7. Once these fresh proceedings have been issued, to the extent there is no defense to the claim, the judgment creditor typically will be able to obtain summary judgment pursuant to CPR Part 24. Summary judgment is an expedited procedure whereby the English court can determine the claim without a trial on the basis that the defendant has no reasonable prospect of defending the claim.

Once judgment has been obtained, the judgment creditor will be able to utilize all of the usual execution procedures (which will be covered in a later paper).

1920 and 1933 Acts

The procedure under these statutory regimes does not require the commencement of a new claim and is therefore considered generally quicker and cheaper than the common law procedure. Applications for registration of judgments must be made within 12 months of the date of the judgment under the 1920 Act and six years under the 1933 Act.

The procedure for both statutory regimes is governed by CPR Part 74. The judgment creditor must make an application without notice to the debtor(s) pursuant to CPR Part 23 for an order registering the judgment. The application must include a certified copy of the judgment, a certified translation and statement confirming its accuracy (if applicable), and written evidence giving details of the judgment and the information requested by CPR r. 74.4(2) to (4). A Master will then decide whether to grant the registration order. The registration order must then be served on the judgment debtor(s), who will be given an opportunity to challenge registration of the order. The creditor may take steps to execute the judgment only once either: (i) the period for applying to set aside the registration has expired; or (ii) the debtor(s)’ set aside application has been dismissed.

1982 Act: Hague 2005

Recognition and enforcement of judgments under Hague 2005 is also governed by CPR Part 74 and follows the same procedure as the 1920 and 1933 Acts. There are additional documents that must be included in the application for registration, including: the exclusive choice of court agreement; for default judgments, a document proving that the defaulting party was notified of the issuing document; documents necessary to establish that the judgment has effect or is enforceable in the originating state; any other documents the enforcing court may require in order to verify that the conditions for enforcement have been met; and certified translations of these documents if they are not in an official language of the enforcing state.

Arbitration

New York Convention and Section 66

The procedure for enforcement is the same under the New York Convention and Section 66.

The procedure for enforcing arbitral awards under the New York Convention is governed by each contracting state’s own procedural rules. In England and Wales, the procedure is set out in CPR 62. In summary, the award creditor applies without notice and on the papers in an arbitration claim form for permission to enforce the award (CPR 62.18(1)). The application must be supported by written evidence that: (i) exhibits the arbitration agreement and original award (or certified copies); (ii) states the name and last known place of residence or business of the claimant and of the person against whom it is sought to enforce the award; and (iii) states that the award has not been complied with or the extent to which it has not been complied with at the date of the application (CPR 62.18(6)).

If the court grants the order for permission to enforce on a without-notice basis, the applicant must then serve the order on the award debtor (with the appropriate permissions, as applicable). The order will grant the judgment debtor a limited time in which to apply to set it aside (CPR 62.18(10)(a)).

If there is no set aside application or a set aside application fails, the court may then grant an enforcement order, following which the award creditor will be able to utilize all of the usual execution procedures.

Available Defenses

Judgments

Common Law

Under the common law regime, there are a handful of limited defenses that may enable a judgment debtor to resist enforcement:

1. If the original court lacked jurisdiction according to the rules that English law applies in such cases. It is not enough for the original court to have lacked jurisdiction under its own internal rules;
2. The judgment was not final and conclusive, e.g., if the judgment can be reopened and reconsidered in the same court, it cannot be said to be final and conclusive;
3. The judgment was not on the merits of the matter adjudicated. The judgment must be a decision that establishes certain facts proved, states the relevant principles of law applicable to such facts, and expresses a conclusion on such application;
4. The judgment was made contrary to a valid dispute resolution agreement (s. 32 of the 1982 Act), e.g., a binding and applicable arbitration agreement or choice of court clause;
5. The foreign judgment was obtained by fraud. The fraud must have caused the judgment in the terms in which it was given;
6. The foreign proceedings were in breach of the rules of natural or substantial justice, which typically means that the judgment debtor was not given due notice or an opportunity to be heard;
7. Recognition would be contrary to English public policy, for example where the foreign judgment has been obtained in defiance of an English anti-suit injunction or where the judgment breaches the principle of the finality of litigation;
8. Recognition of the judgment is barred by the Human Rights Act 1998, i.e., if a party has been deprived of a right to a fair trial under Article 6 of the ECHR;
9. The foreign judgment is inconsistent with an English judgment on the same subject matter and between the same parties; or
10. The judgment is for multiple damages and is therefore unenforceable under the Protection of Trading Interests Act 1980.

1920 and 1933 Acts

Most of the common law defenses to enforcement proceedings are reflected in the statutory defenses provided in Section 9(2) of the 1920 Act and Section 4(1) of the 1933 Act (with only a handful of minor differences in interpretation).

There is one further defense under the 1920 Act that is not mirrored under common law, namely that if an appeal is pending or anticipated, the judgment shall not be registered (Section 9(2)(e)). Under the 1933 Act, this is not a defense to registration but may be used as a ground for set aside (Section 5(1)).

1982 Act: Hague 2005

Article 9 of Hague 2005 sets out the defenses to enforcement:

1. The agreement was null and void under the law of the chosen court
2. A party lacked capacity to conclude the agreement under the law of the chosen court;
3. Lack of notice of the proceedings or invalid service;
4. The judgment was obtained by fraud;
5. Recognition would be contrary to English public policy;
6. The judgment is inconsistent with an earlier English judgment in a dispute between the same parties; or
7. The judgment is inconsistent with an earlier judgment of another contracting state between the same parties.

Arbitration

New York Convention

The defenses to enforcement of New York Convention awards are implemented in Section 103 of the 1996 Act. Section 103 states that recognition and enforcement of an award “shall not be refused” except where:

1. A party to the arbitration agreement lacked capacity;
2. The arbitration agreement was not valid under the law to which the parties subjected it or under the law of the country where the award was made;
3. A party was not given proper notice of the appointment of the arbitrator or the arbitral proceedings, or was not given the opportunity to present its case;
4. The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission;
5. The tribunal composition or arbitral procedure was not in accordance with the agreement of the parties or the law of the country in which the arbitration took place;
6. The award is not yet binding or has been set aside or suspended;
7. The award is in respect of a matter not capable of settlement by arbitration; or
8. The award is contrary to English public policy.

Section 66

The defenses under Section 66 are much broader and less closely defined than those under the New York Convention. There are both mandatory and discretionary defenses.

The one mandatory ground for refusing enforcement is where the defendant shows that the tribunal lacked substantive jurisdiction to make the award (Section 66(3).

The discretionary grounds are similar to those provided under the New York Convention and include the public policy, nonarbitrability, invalidity, and estoppel defenses.

What Relief Is Available to Claimants in a Post-Judgment Context?

Judgments

Section 37(1) of the Senior Courts Act 1981 (“SCA 1981”) grants the court a broad jurisdiction to grant a wide range of injunctive relief “in all cases in which it appears to the court to be just and convenient to do so.” Such injunctive relief may include:

1. Freezing orders (both domestic and worldwide in scope);
2. Asset disclosure orders;
3. Search and/or imaging orders;
4. Delivery-up orders; and
5. Third-party disclosure orders.

In a post-judgment context, the court is likely to be more willing to grant wider-ranging relief to assist the judgment creditor in identifying and preserving assets that are amenable to enforcement.

Arbitration

The English courts have similar powers to grant injunctive relief in support of arbitral proceedings as they have for the purposes of legal proceedings pursuant to Section 44 of the 1996 Act. In a post-award context, there has been debate as to whether the jurisdiction to grant such relief in aid of enforcement of award arises from Section 44 of the 1996 Act or Section 37(1) of the SCA 1981. It is therefore advisable for award creditors to apply for relief under both jurisdictional gateways.

Key Practical Considerations for Claimants

In any case where a claimant has obtained a judgment or award, seeking recognition and enforcement is useful only if there are assets in the jurisdiction. Without locating and identifying such assets, the award/judgment is of no practical or financial value.

As such, it is critical for creditors to instruct counsel to consider enforcement from an early stage to ensure that the judgment/award can be effectively monetized. Failing to do so at the outset can result in challenges, including significant delays and increased costs in recovering the awarded amounts.

Jones Day’s capability lies not only in obtaining judgments and awards against debtors, but crucially in monetizing them through, where necessary, multifaceted enforcement strategies. Our overriding philosophy and the question we ask ourselves in respect of any enforcement mandate is: “Where, anywhere in the world, can we achieve the highest recoveries, in the fastest possible time, using the most efficient means, whether legal, political, or commercial?” As such, while we have 40 offices across five continents, our strategy is never defined by our office locations. We regularly act as global coordinating counsel in relation to matters that do not involve the Firm’s office locations.

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