Winning a sum in a court case is often considered the toughest part of the legal process. However, after successfully securing the judgment, considerable challenges arise in actually recovering the awarded sum from an unconscious counterparty. This is especially complicated when the person or business that owes the money under the judgment is situated in another country.
Therefore, it is crucial to identify as many potential issues that can arise during the enforcement process as possible. Ideally, the complete understanding of where and how the legal ruling will be enforced at the moment of filing the case. Besides identifying the potential judgment debtor and locating its assets, it is essential to distinguish between the two types of potential legal decisions that may be obtained at the outcome: court judgments and tribunal awards, as the steps to enforce them differ. This piece will focus specifically on how to enforce a foreign court judgment in the United Arab Emirates (UAE) or Ukraine.
To facilitate the enforcement of the rights and obligations of parties from two different jurisdictions, the concerned states involved in international trade often enter various conventions and treaties in the sphere of judicial cooperation and reciprocal enforcement of each other's judgments. the UAE and Ukraine (States) have entered into several such international agreements.
Both States have agreed to recognise and enforce each other's court judgments in civil and commercial matters, as outlined in a bilateral treaty called “On Judicial Assistance in Civil and Criminal Matters” (the Treaty). In the UAE, this agreement was ratified by a law called Federal Decree No. 139/2013, while Ukraine enacted a law for the same purpose, Law No. 337-VII, on June 19, 2013.
Basic Provisions of the Enforcement of Court Judgments
The Treaty outlines the mutual commitments of the parties to support one another in several key areas:
- Serving court summons and various judicial documents promptly and effectively.
- Obtaining evidence within each other’s jurisdictions through rogatory requests and inquiries.
- Recognising and enforcing judgments and settlements in civil, commercial, and family matters, as well as judgments that mandate compensation in criminal cases as a result of criminal conviction.
Article 20 of the Treaty specifies certain limitations under which a judgment may not be enforced by a party-State. These conditions include:
- The judgment is not yet considered final in the issuing State.
- The judgment lacks enforceability.
- The issuing court was not recognised as a competent court by the State where it was issued.
- Enforcement would conflict with constitutional principles, public order, or could jeopardise the security or sovereignty of the enforcing State.
- The dispute falls under the exclusive jurisdiction of the enforcing State.
- There were issues with the authority of the representatives or the capacity of the parties involved in the litigation.
- The litigating party was not properly summoned.
- A related dispute involving the same parties and subject matter is ongoing in the enforcing State, provided that this case was initiated before the one resulting in the judgment.
To limit potential disagreements concerning the exclusive jurisdiction of each country's courts, Article 18 of the Treaty provides rules for determining the States’ jurisdiction, which are essentially similar to those States' national procedural rules. To summarise briefly, the exclusive jurisdiction will be determined when:
- The dispute concerns immovable property, for the courts of the country where such property is located;
- Domicile of the defendant, whether it is a physical person or a legal entity, for the courts of the country of such domicile;
- The parties have agreed on the country’s jurisdiction on their contract for such country of agreement;
- In delict cases, the country where the incident occurred.
Practical Steps to Enforce Foreign Judgment
To have a judgment recognised and enforced in one of the States of the Treaty, certain documents must be provided, according to Article 22. Specifically, the application for enforcement needs to include:
- A certified copy of the judgment itself.
- A certificate that confirms the judgment is final and can be enforced, unless this is already mentioned in the judgment.
- If the judgment was a default judgment (where the defendant didn’t appear), a certified copy of the summons or another document proving that the defendant was properly informed about the court case needs to be provided.
- A document that shows that a party with limited legal capacity had proper representation in the proceedings.
Once these documents are ready, the application must be submitted directly to the appropriate court in the State where the judgment is to be enforced.
Notably, when the court in the enforcing State reviews the application, it shall only check if the judgment meets the necessary conditions outlined in the Treaty. They shall not look into the details of the case itself. Hence, the enforcement stage shall not be considered as another opportunity to argue the case. However, if some parts of the judgment are found not enforceable for the reasons already discussed above, the court can decide to enforce the whole judgment or only parts of it if those parts can be enforced separately.
Conclusion
To put it simply, even though clear rules and guidelines for enforcement are outlined in the Treaty, there are still many important details that require careful attention and particular awareness. Key issues concerning exclusive jurisdiction, the parties’ proper notification and capacity, and some other factors can pose serious impediments to the recovery process. These issues can make it difficult to enforce any final decisions made in court, and need to be addressed before a legal dispute is even initiated. It’s always a good idea to work with a legal expert who understands the laws in both relevant countries. In Aleoprive, we can help ensure that you’re taking the right steps and may suggest alternative strategies for overcoming any difficulties as you work towards achieving recovery.