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General framework

Domestic law

Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?

Foreign money judgments can be enforced in the British Virgin Islands pursuant to the Reciprocal Enforcement of Judgments Act 1922 (if the judgment was obtained from certain countries) or under common law by way of a simple debt claim.

Non-money judgments are not directly enforceable in the British Virgin Islands. However, if the claimant has a foreign judgment based on a cause of action recognised under BVI law the judgment may be enforced by issuing a fresh claim in the British Virgin Islands and then relying on the principle of issue estoppel.

Foreign arbitration awards (made in a New York Convention state or otherwise) can be registered and enforced in the British Virgin Islands in accordance with the provisions of the Arbitration Act 2013.

International conventions

Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?

The British Virgin Islands is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Arbitration Convention). This means that arbitration awards made in other convention states will be recognised in the British Virgin Islands, and vice versa.

The relevant jurisdictions applicable to enforcement through the

Reciprocal Enforcement of Judgments Act are England, Northern Ireland, Scotland, the Bahamas, Barbados, Bermuda, Honduras, Trinidad and Tobago, Guyana, St Lucia, St Vincent, Grenada, Jamaica, New South Wales (Australia) and Nigeria.

Competent courts

Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?

Cases relating to the recognition and enforcement of foreign judgments should be dealt with in the High Court of the Virgin Islands, which is the court of first instance in the Virgin Islands for civil proceedings. If the case is complex or high value it is heard by the High Court Commercial Division.

Distinction between recognition and enforcement

Is there a legal distinction between the recognition and enforcement of a judgment?

Foreign judgments first must be registered or recognised in the British Virgin Islands. Once a judgment has been formally registered or recognised, it effectively provides the judgment creditor with a BVI judgment on the same terms as the foreign judgment. The judgment can then be enforced in the same way as any other BVI judgment.

Ease of enforcement

In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?

Enforcement proceedings will generally be straightforward where:

  • the judgment is final and conclusive;
  • the judgment is for a definite sum; and
  • the court had jurisdiction over the defendants.

Reform

Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?

There is nothing to suggest that amendments will be made to the framework for the recognition and enforcement of foreign judgments in the British Virgin Islands.

Conditions for recognition and enforcement

Enforceable judgments

Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?

For a judgment to be enforceable, whether under the Reciprocal Enforcement of Judgments Act 1922 or common law, the original judgment must be for a debt or a definite sum. It cannot be for a sum payable in respect of taxes or other charges similar to or in respect of a fine or penalty. However, other types of judgment can be indirectly enforced by the commencement of fresh proceedings and reliance on issue estoppel to prevent matters from being re-litigated in full.

In addition, a judgment must be final and conclusive. Under common law (although not under the Reciprocal Enforcement of Judgments Act) a foreign judgment can still be final and conclusive even though it may be, or is being, appealed to a higher court. Further, a judgment given in default may be final and conclusive, even though it is capable of being set aside in the court which made the judgment.

The BVI courts will not enforce the criminal or revenue law of another state. Awards of exemplary or punitive damages are not unenforceable, unless found to be contrary to public policy.

How are foreign judgments subject to appeal treated?

Under common law a foreign judgment will still be final and conclusive, even with a pending appeal. As such, foreign judgments subject to appeal are still capable of enforcement. However, under the Reciprocal Enforcement of Judgments Act, a judgment will not be able to be registered if it is subject to appeal.

Formal requirements

What are the formal and documentary requirements for recognition and enforcement of foreign judgments?

Where an application is made to register a foreign judgment pursuant to the Reciprocal Enforcement of Judgments Act, the claimant must make an ex parte application supported by affidavit evidence. The affidavit should exhibit the judgment, or a copy of it, and specify the amount payable under the judgment, including interest.

A claimant seeking to enforce a judgment under common law must commence proceedings for the payment of a debt and should therefore file a claim form and statement of claim, which appends a copy of the judgment. If the defendant is not domiciled within the British Virgin Islands, the claimant must also obtain permission to serve the claim form and statement of claim on the defendant outside of the jurisdiction in accordance with Part 7 of the Civil Procedure Rules.

Substantive requirements

What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?

The Reciprocal Enforcement of Judgments Act provides that a judgment shall be registrable within 12 months of the date of the judgment (or a longer period if allowed by the court) if in all the circumstances of the case the court considers it just and convenient that the judgment should be enforceable in the British Virgin Islands.

For applications to be brought pursuant to the Reciprocal Enforcement of Judgments Act and for claims to enforce foreign judgments by way of common law debt claim, the original judgment must be:

  • for a debt or definite sum;
  • final and conclusive; and
  • from a foreign court which had jurisdiction to give the judgment. 

A claim is for a definite sum where the foreign court has finally determined the amount to be paid and that final amount can be arithmetically determined. An award of unspecified damages is insufficient. While non-money judgments are not directly enforceable in the British Virgin Islands, a fresh claim can be made on a non-money judgment in the British Virgin Islands on which the principle of estoppel can be used to prevent the cause of action or issues from being re-litigated in full (known as the rule in Henderson v Henderson (1844 6 QB 288)).

The question of whether a judgment is final and conclusive is approached differently under common law and the Reciprocal Enforcement of Judgments Act. Under the act, a judgment is not registrable if the judgment debtor satisfies the BVI court that either an appeal is pending or that he or she is entitled and intends to appeal the judgment, whereas under common law a judgment can be considered final and conclusive, even where it is subject to appeal proceedings (in a higher court).

A foreign court will be considered to have had jurisdiction in four kinds of case (sometimes known as the ‘Dicey cases’ or ‘Dicey rule’):

  • if the judgment debtor was, at the time the proceedings were instituted, present in the foreign country;
  • if the judgment debtor was the claimant, or counterclaimed in the proceedings before the foreign court;
  • if the judgment debtor, being a defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings; or
  • if the judgment debtor, being a defendant in the proceedings before the foreign court, agreed in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or the courts of that country.

The principle of res judicata prevents the court from re-examining the merits where the cause(s) of action and issues have already been decided. As such, if the requirements set out above are satisfied then the BVI court will not look beyond the foreign judgment, except where:

  • there was fraud on the part of the person in whose favour the judgment was given or on the part of the court;
  • recognition or enforcement of the judgement in the British Virgin Islands would be contrary to public policy; or
  • the proceedings pursuant to which the judgment was obtained were contrary to natural justice.

Limitation period

What is the limitation period for enforcement of a foreign judgment?

The Reciprocal Enforcement of Judgments Act provides that a judgment will be registrable within 12 months of the date of the judgment. However, the court has discretion to allow a judgment to be registered more than 12 months after judgment was made.

Under common law a claimant will not be able to commence a debt claim on any judgment after 12 years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment can be recovered after six years from the date on which the interest was due.

Grounds for refusal

On what grounds can recognition and enforcement be refused?

Where the claimant makes an application to register a judgment pursuant to the Reciprocal Enforcement of Judgments Act, the judgment will not be registered where:

  • the original court acted without jurisdiction;
  • the judgment debtor is not ordinarily within the jurisdiction of the original court and did not voluntarily appear or otherwise submit to the jurisdiction;
  • the judgment debtor was not duly served with the process of the original court and did not appear (even though he or she was ordinarily within the jurisdiction of that court or submitted to its jurisdiction);
  • the judgment was obtained by fraud;
  • the judgment debtor can show that an appeal is pending or that he or she is entitled to and intends to appeal the judgment; or
  • the judgment was in respect of a cause of action which, for reasons of public policy or otherwise, could not have been entertained by the BVI court.

The rules of common law largely mirror the provisions of the Reciprocal Enforcement of Judgments Act in relation to the parameters within which foreign judgments will be enforced, and the limitations listed above will apply in a largely commensurate fashion to any application to enforce a foreign judgment at common law. However, under common law, a judgment will be considered final and conclusive (and therefore enforceable) even if subject to appeal.

Service of process

To what extent does the enforcing court review the service of process in the original foreign proceedings?

In order for a BVI court to enforce a foreign judgment (either under the Reciprocal Enforcement of Judgments Act or common law) it must be satisfied that the original court had jurisdiction over the defendant. However, the specific method of service of the foreign proceedings will not generally be relevant unless there is an argument that lack of effective service renders the judgment impeachable (eg, because the defendant alleges that the foreign proceedings were never properly served).

Public policy

What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?

Examples of judgments which have been refused recognition in the commercial sphere on public policy grounds are rare. In this regard, English case law is likely to be followed and the decision in Oppenheimer v Cattermole ((1976) AC 249) provides an illustration of how the principle may be used. In that case, the House of Lords found that (for reasons including that it would be contrary to public policy) it was not required to recognise a decree made in Nazi Germany which had deprived certain German Jews of their citizenship.

The BVI courts will not enforce the criminal or revenue law of another state. The relevant test in relation to revenue laws is whether enforcement would involve the indirect enforcement of another state’s revenue laws. The two most relevant cases on this issue are Peter Buchanahn Ltd v McVey ((1955) AC 516) and QRS 1 ApS v Frandsen ((1999) 1 WLR 2169).

Awards of exemplary or punitive damages are not contrary to public policy, although penalty clauses will not be enforceable.   

The BVI courts will also not recognise or enforce a foreign judgment where there has been a breach of the rules of natural justice and, as in other instances, the BVI courts are likely to follow English case law in this regard.

Jurisdiction

What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?

As stated above, in order to enforce a judgment the court must be satisfied that the original court had jurisdiction over the defendant. The decision as to whether the foreign court had jurisdiction over the defendant will be decided in accordance with BVI law, not the law of the country in which the judgment was awarded. In this regard a foreign court will be regarded as having had in personam jurisdiction over the defendant:

  • if the judgment debtor was, at the time the proceedings were instituted, present in the foreign country;
  • if the judgment debtor was the claimant or counterclaimed in the foreign proceedings;
  • if the judgment debtor otherwise submitted to the jurisdiction by voluntarily appearing in the proceedings; or
  • if the judgment debtor, being a defendant, agreed to submit to the jurisdiction of the court in respect of the subject matter before the proceedings commenced.   

The subject matter of the proceedings is not relevant at the enforcement stage (except to the extent that certain judgments, such as judgments which impose criminal penalties, will not be enforceable in the British Virgin Islands).

Concurrent proceedings and conflicting judgments

How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?

Once a cause of action has been adjudicated on by a court (foreign or domestic) it becomes res judicata and the parties are estopped from rearguing the matter. This estoppel relates to the cause of action as a whole and any issue which is determined in the course of the proceedings. Accordingly, the BVI courts take the view that, once matters are decided by a foreign or domestic court, they should not be re-litigated.

Where the BVI courts are confronted with two irreconcilable foreign judgments, which are both seemingly entitled to recognition, then the earlier of the two judgments should be recognised to the exclusion of the other. This is clearly the rule under common law, although it is not specifically dealt with in the Reciprocal Enforcement of Judgments Act.

Opposition

Defences

What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?

A party against whom a claim has been brought to enforce a foreign judgment in the British Virgin Islands has limited grounds on which to argue that the judgment should not be enforced. The defendant could argue that the judgment was not final and conclusive, or that that the foreign court did not have jurisdiction. The defendant could also argue that the judgment was obtained by fraud, contrary to public policy, obtained in breach of the rules of natural justice or an indirect attempt to enforce the criminal or revenue laws of another state.

Injunctive relief

What injunctive relief is available to defendants (eg, anti-suit injunctions)?

Injunctive relief is available on the launch of a claim for the registration or enforcement of a foreign judgment if it can be shown that there is a serious issue to be tried (which is almost always the case in enforcement cases).

Recognition and enforcement procedure

Formal procedure

What is the formal procedure for seeking recognition and enforcement of a foreign judgment?

Under common law, the judgment creditor should file a claim form, statement of claim and (most likely) an application to serve the claim out of jurisdiction on the judgment debtor. Once the claim has been served, the claimant will generally be able to file an application either for judgment in default or for summary judgment. Once judgment has been obtained it will be enforced in the same way as any other BVI judgment. A common method of enforcement, if the judgement debtor owns shares in a BVI company (which is the main reason for enforcement of judgments in the British Virgin Islands) is to apply for a charging order over the shares in the company.

The procedure for registering a foreign judgment under the Reciprocal Enforcement of Judgments Act 1922 is by way of application made pursuant to Part 72 of the Civil Procedure Rules. This may be made without notice, but must be supported by affidavit evidence which exhibits the judgment (or a copy of it) and specify the overall amount that remains to be paid under the judgment, including any interest due.

Timeframe

What is the typical timeframe for the proceedings to grant recognition and enforcement?

When seeking to enforce by way of a common law debt claim, the timeframe will often be heavily influenced by the time it will take to effect service on the defendant(s) out of the jurisdiction (which, once permission has been granted by the court, can vary between a few days to over a year depending on the methods of service available and the willingness of the defendant to accept service). Service aside, the proceedings will usually be concluded relatively quickly, given that it will almost always be determinable on summary judgment and will take typically between two to three months (assuming that the court has capacity to determine the claimant’s application for permission to serve out and any summary judgment application).

The process for registering a foreign judgment under the Reciprocal Enforcement of Judgments Act will be generally quicker – it should be possible to have an application for registration determined within a month. However, before a judgment registered under the act can be executed on, notice of its registration must be served on the judgment debtor and the period for the judgment debtor to make an application to set aside that registration must have passed. That period will be determined by the judge on the registration of the judgment and will generally take into account the specific circumstances of the case (which may include a consideration of where the judgment debtor is located).

Fees

What fees apply to applications for recognition and enforcement of foreign judgments?

The court fees for filing a claim to enforce a foreign judgment under common law is $1,500 (or $300 if a fixed-date claim form is used). The fees associated with filing an application for permission to serve out of the jurisdiction and for summary judgment are approximately $600 to $700. Any legal fees incurred in pursuing the claim can be claimed in the usual way.

When seeking to register a judgment under the Reciprocal Enforcement of Judgments Act a court fee of around $600 will be payable on application. The act provides that the reasonable costs of an incidental to the registration of the judgment (including the costs of obtaining a certified copy of the judgment from the original court) will be recoverable as if they were sums payable under the judgment.

Security

Must the applicant for recognition and enforcement provide security for costs?

Under common law procedure the applicant is not required to provide security for costs. However, under the procedure for registration under the act, the court may order the judgment creditor to give security for the costs of the application for registration and of any proceedings which may be brought to set aside the registration.

Where both regimes of enforcing a judgment are available to a judgment creditor, the creditor will be entitled to recover any costs of a common law action only if an application to register the judgment under the statutory regime has already been refused or the court otherwise allows.

Appeal

Are decisions on recognition and enforcement subject to appeal?

An order or judgment made pursuant to a claim to enforce under common law is theoretically appealable. If summary judgment has been granted, an application could be made to set it aside. However, because a cause of action that has been adjudicated on by a foreign court becomes res judicata and the parties are estopped from rearguing the matter, there will be limited scope for appealing the order of the BVI court on substantive grounds.

A judgment debtor can make an application to set aside an order registering a foreign judgment under the Reciprocal Enforcement of Judgments Act. He or she must do so within the time specified within the order.

Other costs

How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?

Any interest payable on a foreign judgment being enforced by common law claim should be rolled up and added to the overall amount being claimed in the enforcement proceedings. Where the foreign judgment to be enforced requires payment in a currency other than US dollars, the claimant can choose which currency to claim. If he or she chooses US dollars, the claimant should include within the claim form and statement of claim the exchange rate that they have used to calculate the sum payable.

Where a judgment is registered under the Reciprocal Enforcement of Judgments Act, it will be of the same force and effect as if it had been originally obtained or entered on the date of registration. As such, any interest provided for in the judgment will be enforceable, but should be calculated only as from the date of registration.

Enforcement against third parties

To what extent can the courts enforce a foreign judgment against third parties?

In order for a BVI court to enforce a foreign judgment (either by statute or under common law rules) it must be satisfied that the original court was entitled to assume jurisdiction over the defendant. A foreign court will be considered to have had jurisdiction in four kinds of case (sometimes known as the ‘Dicey cases’ or ‘Dicey rule’):

  • if the judgment debtor was, at the time the proceedings were instituted, present in the foreign country;
  • if the judgment debtor was the claimant, or counterclaimed in the proceedings before the foreign court;
  • if the judgment debtor, being a defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings; or
  • if the judgment debtor, being a defendant in the proceedings before the foreign court, agreed in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or the courts of that country.

It is not sufficient that the foreign court believed it was entitled to assume jurisdiction over the defendant under its own procedural rules. Consequently, a foreign judgment that seeks to provide relief against a third party is not enforceable in the British Virgin Islands against that third party unless the foreign court had jurisdiction over them.

Where a judgment creditor seeks to enforce the judgment against third parties that comprise the assets of the judgment debtor (eg, the shares in a company owned by the judgment debtor), once the judgment has been registered or is enforceable under common law rules, the judgment creditor can apply for charging orders over the assets of the judgment debtor (and possibly other relief as against third parties in support of the enforcement process).

Partial recognition and enforcement

Can the courts grant partial recognition and enforcement of foreign judgments?

Under the statutory regime there is no provision for the registration of part of a foreign judgment – if the criteria for registration are met, the judgment will be registered and be of the same force and effect as if made by the BVI court.

Under the common law regime, it is possible to issue a claim to enforce only a part of a foreign judgment or to enforce against only one (or some) of several defendants. A claimant may elect to do so where it is likely a court would grant permission to serve out only on one or some of the judgment debtors.