1) US (and Foreign) Court Judgments in England
Given London’s status as a financial centre, England is a sensible venue to explore when considering
where to enforce a court decision.
England has two statutory procedures to enforce judgments from foreign courts:
I. the Administration of Justice Act 1920 (dealing with certain British colonies and
Commonwealth countries); and
II. the Foreign Judgments (Reciprocal Enforcement) Act 1933 (dealing mostly with
Various provisions of EU law also provide for the reciprocal enforcement of decisions of the courts
of other EU/EEA member states.
The above legislative arrangements do not cover most of the world’s countries. Important trading
partners of the UK, such as Japan and the USA, are not included.
However, it is possible to bring an action in England at common law to enforce the judgment of any
Enforcement at Common Law
In the absence of a legislative provision, the procedure for enforcing the judgment of a foreign
court is to bring a separate claim in the English courts. The English courts will treat the foreign
judgment as creating a debt between the parties rather than requiring the matter to be re-litigated
on the merits.
If the defendant is domiciled outside England & Wales it will be necessary to apply to the court for
permission to serve the claim form upon the defendant out of the jurisdiction. The fact that a claim
is brought to enforce a foreign judgment is a basis upon which the court may serve the claim form
out of the jurisdiction. Although such permission is always subject to the discretion of the Court, it
will likely be granted if the debtor has assets in this jurisdiction.
If the conditions for enforcement (set out below) are met, the usual procedure is to apply for
summary judgment on the claim, which in most cases is a straightforward and relatively cheap
International Arbitration and Litigation Team
August 2014Bryan Cave LLP Europe | Americas | Asia www.bryancave.com
Requirements imposed on the judgment
The English court will generally not “look behind the judgment” of the foreign court. The decision
cannot be set aside on its merits, either of fact or of law, even if the English court can be satisfied
that the decision of the foreign court is wrong as a matter of law. For a foreign judgment to be
recognized, all that is required is that:
The judgment is final and conclusive on the merits;
The claim is for a specific, definite amount of money including a final order for costs, rather
than specific performance; and
The foreign court had jurisdiction according to English rules.
Finality of the judgment
The judgment must be final and conclusive in the court which pronounced it. This means that the
order must be a final order, not an interim order, and that the decision would preclude further
proceedings from being brought on the same subject-matter in that jurisdiction.
This does not mean that the appeals process must be exhausted, provided the appeal is to a higher
court, and there has been no stay of the lower court’s order until the appeal has been determined.
Joint Stock Company (Aeroflot-Russian Airlines) v Berezovsky and another  EWCA Civ 20
In this case Aeroflot’s claim in England to enforce a Russian judgment was summarily dismissed. It
was held that the Russian judgment could not be seen as final. The Court of Appeal clarified the
approach to be adopted when considering whether a foreign judgment is final and binding for the
purposes of recognising and enforcing a foreign judgment; the test was whether the earlier
judgment would have precluded the unsuccessful party from bringing fresh proceedings in the
Specific monetary nature of the claim
The claim must be for a definite sum of money. A sum is regarded as sufficiently certain for these
purposes if it can be ascertained by a simple arithmetical process.
Desert Sun Loan Corp v Hill  2 All E.R. 847
Here a claimant sued in England to enforce a judgment of an Arizona court. The defendant had
failed in an application to the Arizona court to set aside the judgment on the grounds that he had
not authorized a US lawyer to enter an appearance in Arizona. The claimant sued to enforce the
judgment in England, and applied for summary judgment on the grounds of issue estoppel and that
the debtor had no arguable defence. The claimant appealed.
The Court of Appeal held that whilst the Arizona court had decided it had jurisdiction, it was not
clear whether the substantive issue of whether the US lawyer was authorized to act had been
determined by the Arizona court. Summary judgment was not obtained and the defendant was
allowed to defend the claim.Bryan Cave LLP Europe | Americas | Asia www.bryancave.com
English courts will normally recognize a foreign court’s jurisdiction to pronounce a judgment
capable of recognition and enforcement in England if either:
At the time the proceedings were commenced, the defendant was present in the country of the
foreign court; or
If the defendant submitted to the jurisdiction of the foreign court, either by agreement or by
taking part in the proceedings.
A company will be regarded as present in a foreign jurisdiction if:
it has established and managed at its own expense a fixed place of business in the foreign
country and, for more than a minimal period of time, carried on business at those premises; or
a representative of that corporation has been carrying on business in that country for more
than a minimal period of time.
In either case, presence can only be established if it can be proved that the corporation’s business
interests have been transacted from, or at, the fixed place of business.
It is not permissible to argue that a company is present in a foreign jurisdiction because it is a part
of a larger group of companies which has another group company within the foreign jurisdiction.
A defendant will be deemed to have submitted to the jurisdiction of the foreign court in the
the defendant actually selected the foreign court, by commencing the proceedings as claimant
in the foreign action;
the defendant participated in the proceedings in the foreign action (unless this appearance was
purely for the purpose of contesting the foreign court’s jurisdiction or to protect or obtain the
release of property seized or threatened with seizure); or
if the parties have agreed that any disputes between them be referred to the courts of the
foreign country, or for proceedings to be served on them in that country, the English courts will
deem them to have agreed to the jurisdiction of the foreign court. A jurisdiction clause in a
commercial agreement would achieve this result. However, such an agreement must be explicit
and agreement will not be implied.
The purpose of any appearance, not the form it took, is conclusive. If a defendant had to submit a
case on the merits as well as applying to contest jurisdiction, the defendant will be entitled to
argue that he did not submit to the foreign court. However, if the defendant defends the claim on
the merits when this was not necessary to contest jurisdiction, the English court is likely to
conclude that by defending the claim on the merits the defendant submitted to the jurisdiction of
the foreign court.
Circumstances which may prevent enforcement
Generally, if the English court considers the judgment to be conclusive and that the foreign court
had jurisdiction, it will be difficult to avoid enforcement of the foreign judgment. Enforcement can
be avoided only in a limited number of circumstances, as set out below.Bryan Cave LLP Europe | Americas | Asia www.bryancave.com
A foreign judgment which has been obtained by fraud will not be recognized or enforced in
England, whether the court itself committed the fraud, or whether a party to the litigation
committed the fraud.
Gelley v Shephard  EWCA Civ 1172
Following a court order issued by a BVI court, it was held that the order had been “tainted by
fraud” because of misstatements made by Mrs Gelley. The Court of Appeal considered
circumstances where the court would refuse to enforce a foreign judgment ‘tainted by fraud’. In
considering the approach of the courts as to the scope of the fraud exception, Sales J provided a
more precise formulation stating that in order for the exception to apply, that the fraud in question
must have been “operative in obtaining the foreign judgment and order”. It follows therefore that
the exception applies where the judgment and order in question would not (or there was a real
possibility it would not) have been made, but for the fraud.
A foreign judgment will not be enforced if its enforcement would be contrary to public policy in
England. It has been held that if this policy issue was considered by the foreign court (or if the
public policy of the foreign country is substantially the same as under English law), the conclusion
of the foreign court might prevent this issue being raised before the English courts.
“Public policy” is difficult to define – previously a Commercial Court judge said that “it is never
wise to attempt an exhaustive definition of its content”. However, it does not refer to the policy
of an individual government, or relate to the protection of national commercial or strategic
interests. It refers instead to concepts of morality and seeks to prevent interference in litigation or
bribery and influence-peddling, as well as refusing to enforce contracts to perform an illegal
A foreign judgment will not be enforced by the English courts if the proceedings in which that
judgment was obtained were contrary to natural justice. This objection may be taken before the
English court even if it was not taken before the foreign court.
Rubin v Eurofinance SA  UKSC 46
This case concerned a US federal bankruptcy court judgment in default of appearance. The UK
Supreme Court decided that a foreign judgment should not be enforced unless the defendant was
present in the foreign jurisdiction or otherwise voluntarily submitted to the proceedings in its courts.
Foreign public/criminal law
The English courts will not enforce a judgment originating from a claim for tax, a fine or revenue of
a foreign country.
United States Securities & Exchange Commission v Manterfield  EWCA Civ 27
The grant of a freezing injunction to the Securities and Exchange Commission in support of United
States proceedings did not in the circumstances fall foul of the rule preventing enforcement in
England of foreign penal laws. It was right not to require the Commission to give a crossundertaking in damages.Bryan Cave LLP Europe | Americas | Asia www.bryancave.com
JSC VTB Bank v Skurikhin and others  EWHC 271 (Comm)
This case illustrates continued uncertainty regarding conclusiveness of foreign judgments for “fines
and penalties”. Simon J held that there was an arguable defence to the claims characterised as
“penalties” on public policy grounds. Therefore, summary judgment in respect of the principal
sums and contractual interest was granted, but sums of interest in respect of the “penalties” were
The above exceptions are generally regarded as difficult to establish. Despite the lack of
arrangements for reciprocal enforcement of judgments, it should be possible to enforce a US
monetary judgment in the English courts if the judgment is conclusive and the foreign court had
jurisdiction in the matter.
The English courts generally take a generous view of enforcing foreign court judgments and the
procedure is (by the standards of English legal proceedings) quick and cost-effective. Any party
with a US court judgment in their favor ought to consider whether their opponent has assets in
England and, if it does, to consider enforcing that judgment through the English courts.
It is generally very rare for the English courts not to enforce a foreign judgment if it is a final
decision for a sum of money and if the foreign court is deemed to have had jurisdiction over the
For more information, please contact the authors of this bulletin, Robert Dougans (London) and
Nabeel Osman (London), or one of the co-Leaders of the team, Pedro Martinez-Fraga (Miami) or
Rod Page (Washington and London).
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International Arbitration and Litigation Team
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Jean de Hauteclocque
Pedro J. Martinez-Fraga