United Arab Emirates: SIFoCC's 2019 Multilateral Enforcement Memorandum-A Practical Guide To The International Enforcement Of Foreign Money Judgments

Last Updated: 24 September 2019
Article by Sara J. Sheffield and Derek Bayley

Dispute Resolution analysis: In June 2019, the Standing International Forum of Commercial Courts (SIFoCC) published a Multilateral Memorandum on Enforcement of Commercial Judgments for Money (the memorandum), a landmark multilateral memorandum providing legal guidance on the enforcement of money judgments issued by commercial courts of its membership countries. Derek Bayley and Sara Sheffield, associate and partner in the commercial disputes team at HFW Dubai, outline the aims, scope and limitations of the memorandum.

What is the Standing International Forum of Commercial Courts?

Launched in May 2017, the SIFoCC is a modern multinational judicial initiative pioneered by former Lord Chief Justice, Lord Thomas. The SIFoCC is in effect an assembly of commercial judiciaries from around the world. The SIFoCC meets every 12–18 months, to share best practice and further its aims of mutual enforcement. The SIFoCC's current membership includes representatives from almost 40 jurisdictions across five continents, each represented by senior judiciary members, including a number of Chief Justices. The SIFoCC has previously met in London in 2017 and New York in 2018. It will next meet in Singapore in 2020.

What is the memorandum, and what are the key points of relevance to dispute resolution practitioners?

The memorandum sets out laws and procedures from 32 key commercial courts around the world which are relevant to claimants/judgment creditors seeking to enforce a money judgment obtained in one jurisdiction in the courts of another. This includes England and Wales, a few EU Member States including Germany and France, various US state jurisdictions, Australia, New Zealand, Singapore, Hong Kong, Africa, and the Middle East, including the common law courts of Qatar (the Qatar International Court) and the United Arab Emirates (including the Dubai International Financial Centre and the Abu Dhabi Global Market Courts).

The memorandum provides key guidance on general principles regarding the treatment of foreign commercial money judgments by the enforcement forum, in order to avoid merits review and decrease party costs and wasted time. It covers key legal and practical questions such as:

  • which laws determine whether the judgment can be enforced in the requested court
  • whether there are multilateral or bilateral treaties that may create a 'fast-track' regime for judgments of certain courts of origin
  • what qualifies as a commercial money judgment for the purposes of the requested court
  • what special grounds exist for refusal of enforcement of the judgment
  • whether the enforcement court has any special requirements as to the way in which the original court exercised jurisdiction
  • whether there is an operative limitation period to bring an action on the judgment for enforcement in the requested court
  • whether there are any defences that can be raised by the judgment debtor
  • what practical steps must a judgment creditor take to apply for enforcement
  • what are the powers of the enforcement forum
  • what deadlines and timetables exist for enforcement procedures

Enforcement guides are often authored by practitioners or are accessed via paid subscription services. In the memorandum's case, however, the account of the rules for each court is provided either by experts from the enforcement country itself, or, in the majority of cases, members of the enforcement court itself. The memorandum is therefore a unique resource in terms of both its credibility and accuracy for practitioners and judgment creditors alike.

What is the scope of the memorandum, and what are its limitations?

There are some limitations to the scope of the memorandum's coverage.

First, the memorandum explicitly concerns money judgments only—ie a ruling in one court requiring a person to pay a sum of money to someone else. It does not cover judgments for non-monetary or ancillary relief.

Second, whereas the memorandum recognises that some of the jurisdictions it covers are party to various multilateral or bilateral enforcement treaties—including, for example, bilateral treaties such as the Trans-Tasman Proceeding Act 2010 (Cth) between Australia and New Zealand, multilateral treaties such as the 2005 Hague Convention on Choice of Court Agreements, and for the enforcement of many judgments given by the courts of an EU Member State, Regulation (EU) 1215/2012, Brussels I (recast) and the Lugano Convention 2007—it does not necessarily set out in full the procedures that apply under such treaties.

Third, while instructive as a useful set of statement of principles, the memorandum does not have the same status as a treaty instrument. It therefore has no binding effect on its members or on judges of the courts that have produced the memorandum. Whereas the enactment of treaty law is for the remit of national legislatures, the memorandum is expressly stated not to 'supersede any existing or future laws, judicial decisions or court rules.'

Fourth, the memorandum does not follow a uniform format, from jurisdiction to jurisdiction, such that there is some variation in the detail provided between jurisdictions.

To what extent might the memorandum address enforcement issues in the event of a no deal Brexit? Does it have potential to usurp the supremacy of arbitration awards when it comes to enforcement?

Given, as noted above, the memorandum does not have any binding effect, the memorandum will not:

  • create any new legal architecture in the post-Brexit enforcement of commercial money judgments, if the UK ceases to be a party to the Regulation (EU) 1215/2012, Brussels I (recast), nor will it
  • affect, circumscribe, of amend any enforcement regimes relating to arbitral awards (either domestic, or international)

In that regard, practitioners should still look to other primary legal resources which set out the relevant rights and obligations of parties, as well as secondary legal guidance to assist them in interpreting such obligations, in the context of both the enforcement of post-Brexit judgments, and the enforcement of 1958 New York Convention awards.

This article was first published by LexisNexis on 30 July 2019

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions