COMPARATIVE GUIDE
10 June 2024
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Enforcement of Foreign Judgments Comparative Guide

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Fenech & Fenech Advocates

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Established in 1891, Fenech & Fenech Advocates is a multi-disciplinary full service law firm with diverse areas of expertise, including corporate and commercial law, M&A transactions, financial services, tax, immigration, banking, trusts and foundations, aviation, intellectual property, maritime law and marine litigation, yachting, employment law, environmental law and various other areas.
Enforcement of Foreign Judgments Comparative Guide for the jurisdiction of Malta, check out our comparative guides section to compare across multiple countries
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1 Legal and judicial framework

1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?

The recognition and enforcement of foreign judgments in Malta are governed primarily by EU Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Recast Regulation). This regulation governs the recognition and enforcement of judgments issued by EU courts and is directly enforceable in Malta.

The EU Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Regulation) is of limited application. Though it has now been repealed, it is still applicable to judgments issued in legal proceedings started before 10 January 2015;

The Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano in 2007 (the Lugano Convention), is also applicable in Malta. This regulates the enforcement of civil and commercial matters between EU member states, Norway, Iceland and Switzerland.

The recognition and enforcement of judgments issued by courts in countries outside the European Union are governed by Title V of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta).

1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?

As Malta is a member state of the European Union, the following regulations have direct effect in Malta:

  • the Brussels Recast Regulation;
  • the Brussels Regulation; and
  • the European Enforcement Order for Uncontested Claims Regulation (805/2004).

Malta is also a party to the Lugano Convention , which regulates the enforcement of civil and commercial matters between EU member states, Norway, Iceland and Switzerland.

Malta has also passed the British Judgments (Reciprocal Enforcement) Act (Chapter 52 of the Laws of Malta). By means of its subsidiary legislation, it has created reciprocal agreements with Gibraltar, New South Wales, Bermuda, Western Australia, Victoria, the United Kingdom and Tasmania and its dependencies.

1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?

The First Hall of the Civil Court has jurisdiction to hear applications for the recognition and enforcement of foreign judgments.

2 Requirements for enforceability

2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?

According to the Brussels Recast Regulation, the Brussels Regulation (44/2001) and the Lugano Convention 2007, a ‘judgment' is defined as "any judgment given by a court or tribunal of a Member State, whatever the judgement may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court". The Brussels Recast Regulation specifically excludes provisional, including protective, measures which are ordered by a court or tribunal without the defendant being summoned to appear, unless the judgment is served on the defendant prior to enforcement.

These regulations do not apply to judgments relating to:

  • the status or legal capacity of natural persons;
  • rights in property arising from a matrimonial relationship or any similar arrangement;
  • bankruptcy proceedings or the winding up of companies;
  • social security;
  • arbitration;
  • maintenance obligations; and
  • wills and succession.

Under Title V of the Code of Organisation and Civil Procedure, a judgment delivered by a non-EU court will be recognised if:

  • it has been delivered by a competent court; and
  • it constitutes a res judicata.

The following will not be recognised:

  • any judgment which is contrary to Maltese public policy;
  • any judgment given in default of the defendant's presence where it was validly served at law; and
  • any judgment which falls under any of the grounds set out under Article 911 of the Code of Organisation and Civil Procedure.

2.2 Must a foreign judgment be final and binding before it can be enforced?

Yes. A certificate of no appeal must also be presented with the application for recognition and enforcement.

2.3 Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?

EU Brussels Regulation and Lugano Convention: Under Article 37 of the regulation, the Maltese courts may stay proceedings if an ordinary appeal against the judgment has been lodged.

EU Brussels Recast Regulation: Under Article 38(a), the Maltese courts may suspend the proceedings in whole or in part if the judgment is challenged in the member state of origin.

Non-EU judgments under Title V of the Code of Organisation and Civil Procedure: A foreign judgment that is subject to appeal in a foreign jurisdiction is not enforceable in Malta. A judgment must be a res judicata in order to be recognised in Malta.

2.4 What is the limitation period for making an application for recognition and enforcement?

Under the Brussels Regulation, the Brussels Recast Regulation and the Lugano Convention, there is no limitation period for recognition and enforcement of a judgment, insofar as the judgment remains valid before the original court. Under the provisions of the Code of Organisation and Civil Procedure, which apply where the judgment is issued by a non-EU court, there is a general limitation of 15 years within which the judgment must be enforced. Once this period has elapsed, an application must be filed before the court to request that the judgment be enforced.

3 Recognition and enforcement process

3.1 Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?

The recognition of a foreign judgment is a precursor to its enforcement. An application for recognition of a foreign judgment is filed in order to give the judgment the same effect in Malta as exists in the country of origin. Once the judgment has been recognised, it can be enforced as an executive title.

3.2 What is the formal process for recognition and enforcement?

Brussels Regulation and Lugano Convention: An application must be filed before the First Hall of the Civil Court requesting recognition and enforcement of the judgment. This must be accompanied by an authenticated copy of the judgment, together with an authenticated translation of the judgment into Maltese or English. The standard certificate found in Annex V of the regulation issued by the court of origin must also be included.

The application must be served on the defendant. Once the above criteria are satisfied, the court will proceed to recognise the judgment. The defendant retains a right to appeal under Article 827 of the Code of Organisation and Civil Procedure.

Brussels Recast Regulation: This regulation simplified the procedure for recognition and enforcement. Recognition requires the submission of:

  • a certified copy of the judgment;
  • a certified translation of the judgment into Maltese or English; and
  • a certificate according to Article 53 of the regulation issued by the state of origin, containing an extract of the judgment and relevant information on the recoverable costs of the proceedings and the calculation of interest.

The certificate and judgment must be served on the party against which enforcement is sought.

Non-EU judgments under Title V of the Code of Organisation and Civil Procedure: An application must be filed before the First Hall of the Civil Court, accompanied by a certified copy of the original judgment, together with a certified translation into Maltese or English language and a certificate of no appeal.

3.3 What documents are required in support of an application for recognition and enforcement?

See question 3.2.

3.4 What fees are payable for recognition and enforcement?

The court fees to file an application for recognition and enforcement of a foreign judgment typically do not exceed €100. These figures do not include legal fees.

3.5 Is the applicant required to provide security for costs?

No.

3.6 How long does it usually take to obtain a declaration of enforceability?

There is no timeframe that one can rely on when seeking a declaration of enforceability. This largely depends on the caseload of the judge appointed to hear the case and on whether the application is defended.

3.7 Can the applicant seek injunctive relief while the process is ongoing?

The Maltese courts do not have a system of injunctive relief; however, an applicant can seek to have provisional orders granted in the interim in order to secure its claim. Examples of such provisional orders include:

  • a garnishee order, which is akin to a freezing order; and
  • a warrant of seizure of moveable or immoveable property.

4 Defences

4.1 On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?

Brussels Regulation and Lugano Convention: The grounds for appeal are set out in Articles 34 and 35 of the regulation and convention as follows:

  • Recognition of the judgment would be manifestly contrary to public policy in the recognising state;
  • The judgment was issued in default of appearance, if the defendant was not validly served with the document which instituted proceedings or such equivalent document in sufficient time to arrange its defence;
  • The judgment is irreconcilable with a judgment given in a dispute between the same parties in the member state in which recognition is sought;
  • The judgment is irreconcilable with an earlier judgment given in another state between the same parties and involving the same cause of action; or
  • The judgment conflicts with jurisdictional matters relating to consumer contracts, insurance or areas of exclusive jurisdiction identified by the regulation or convention.

Brussels Recast Regulation: An interested party may request that the recognition of a judgment be refused on the basis of the grounds set out under Article 45, which reproduce the grounds mentioned above and further include refusal on the basis of jurisdictional matters relating to employment where the employee was the defendant.

Non-EU judgments: The defendant may challenge the recognition and enforcement of a non-EU judgment:

  • on the grounds set out in Article 827 of the Code of Organisation and Civil Procedure;
  • on any grounds mentioned in Article 811 of the code;
  • in case of a judgment by default, if the parties were not validly served according to foreign law; or
  • if the judgment contains any dispositions that are contrary to public policy or to the internal public law of Malta.

4.2 What is the limitation period for filing a challenge?

Brussels Regulation and Lugano Convention: One month from service of the declaration of enforceability. If the party against which enforcement is sought is domiciled in a state that is bound by this convention other than that in which the declaration of enforceability was given, the timeframe for appeal shall be two months.

Non-EU judgments: Twenty days.

4.3 Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?

Injunctive relief is not available under Maltese law. However, a defendant may challenge the recognition and enforcement of a foreign judgment on the grounds set out in question 4.1, and can request various provisional measures from the court in order to satisfy any potential damages suffered. Examples of such measures include:

  • a precautionary garnishee order, which is akin to a freezing order; and
  • a precautionary warrant of seizure of immoveable or moveable property.

5 Court analysis and decision

5.1 Will the court review service of process in the initial proceedings?

Brussels Regulation and Lugano Convention: The Maltese courts do not have a right to review service of process in the initial proceedings. However, the defendant may raise this ground on appeal, claiming that the judgment was given in default of appearance or not in sufficient time to allow it to arrange for its defence.

Brussels Recast Regulation: Any interested party may file an application for refusal of the enforcement on the same grounds as outlined above.

Non-EU judgments: The court may review service of process in the initial proceedings.

5.2 Will the court review the jurisdiction of the foreign court in the initial proceedings?

Brussels Regulation, Lugano Convention and Brussels Recast Regulation: Yes, the Maltese courts may review and refuse recognition of a judgment where this would conflict with the rules on jurisdiction.

Under the Brussels Regulation and the Lugano Convention, these include judgments relating to:

  • insurance matters;
  • consumer contracts; and
  • areas of exclusive jurisdiction.

Under the Brussels Recast Regulation, the above areas also apply, in addition to judgments involving employment contracts where the employee is the defendant.

Non-EU judgments: The Maltese courts may review the jurisdiction of the foreign courts under Article 827 of the Code of Organisation and Civil Procedure.

5.3 Will the court review the foreign judgment for compliance with applicable law and public policy?

The court will not review the foreign judgment for compliance with applicable law, but may refuse to enforce it if this would be in violation of Malta's public policy or internal public law. An example of this is a judgment providing for the payment of interest at rates exceeding 8% per annum. A judgment which orders the payment of interest at rates that exceed this figure would be in breach of Maltese public policy.

5.4 Will the court review the merits of the foreign judgment?

No, the court will not review the merits of the foreign judgment. This is prohibited under the Brussels Regulation, the Lugano Convention and the Brussels Recast Regulation.

5.5 How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?

The court may refuse to recognise and enforce a judgment if this would conflict with a previous judgment in relation to the same dispute between the same parties.

Under the Brussels Regulation and the Lugano Convention, this is raised by means of an appeal to the declaration of enforceability issued by the recognising court. If the court finds that the judgment conflicts with a previous judgment in relation to the same dispute between the same parties, it will revoke the declaration of enforceability.

Under the Brussels Recast Regulation, any interested party may file an application requesting the refusal of recognition of a foreign judgment on this basis.

With respect to a non-EU judgment, the court may refuse recognition and enforcement where the foreign judgment conflicts with a judgment concerning the same dispute between the same parties.

5.6 Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?

As long as the criteria mentioned in reply to question 2.1 and 3.2 are adhered to, there are no other grounds aside from those mentioned in reply to question 4.1 upon which the court may refuse to recognise and enforce a foreign judgment.

5.7 Is partial recognition and enforcement possible?

Partial recognition and enforcement of a judgment is possible in theory. One example of this is where the judgment awards interest at a rate that exceeds the maximum limit of 8% allowed under Maltese law; in this case the interest awarded will be capped at the legal limit, thus allowing for partial recognition and enforcement of the foreign judgment.

5.8 How will the court deal with cost issues (eg, interest, court costs, currency issues)?

Applications for the recognition and enforcement of a judgment must be filed in euros. Court costs are similarly paid in euros, while interest rates cannot exceed 8% per annum on public policy grounds.

6 Appeals

6.1 Can decisions in relation to the recognition and enforcement of foreign judgments be appealed?

Yes, the recognition and enforcement of foreign judgments can be appealed.

Brussels Regulation and Lugano Convention: A judgment will be declared enforceable upon completion of the formalities set out in Article 53, which requires the production of:

  • a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
  • a translation of the document into Maltese or English; and
  • the certificate using the standard form in Annex V.

An appeal can be filed on the grounds listed in Articles 34 and 35.

Brussels Recast Regulation: A decision on the application for refusal of enforcement may be appealed by either party.

Non-EU judgments: A decision on the recognition and enforcement of a foreign judgment may be appealed.

6.2 Can the applicant seek injunctive relief while the appeal is pending?

There is no injunctive relief under Maltese law. However, the applicant may seek to apply for provisional measures in order to secure its claim while the appeal is pending. Examples of such provisional measures include:

  • a precautionary garnishee order, which is akin to a freezing order; and
  • a warrant of seizure of immoveable or moveable property.

7 Enforcing the foreign judgment

7.1 Once a declaration of enforceability has been granted, how can the foreign judgment be enforced?

Once a declaration of enforceability has been granted, the foreign judgment can be enforced in the same manner as a local judgment. Once recognised, the judgment will become an executive title, allowing the enforcing party to issue executive warrants such as executive warrants of arrest and garnishee orders in order to satisfy its claim.

7.2 Can the foreign judgment be enforced against third parties?

No, a foreign judgment cannot generally be enforced against third parties in Malta.

8 Trends and predictions

8.1 How would you describe the current enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

With Brexit now in force, we predict that the Maltese courts will see increased applications under the British Judgments (Reciprocal Enforcement) Act (Chapter 52 of the Laws of Malta), which was relegated to non-use with the advent of the Brussels Regulations when the United Kingdom was still a member of the European Union. Despite Brexit, Malta has a mechanism that will allow for the reciprocal enforcement of British judgments through a streamlined and effective process.

9 Tips and traps

9.1 What are your top tips for smooth recognition and enforcement of foreign judgments, and what potential sticking points would you highlight?

Ensure that all documentation is in order:

  • Obtain authenticated copies of the judgment;
  • Translate the judgment into Maltese or English; and
  • Obtain any necessary certificates issued from the court, including certification that there is no appeal pending, where necessary.

Due to heavy caseloads, the date between one sitting and another might be lengthy. It is thus helpful to have all documentation at hand, to ensure that there are no unnecessary delays.

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.

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