Good cash-flow is an obvious requirement for any businesses and outstanding invoices can hamper the stability and progress of a business. Cross-border debt can even more problematic. Post-Brexit poses even more complications.
If you have navigated through an attempt to reach a mutually agreeable settlement through negotiation, without success, obliging you to take your debtor through the court process and have successfully obtained a court order you may then face the issue of enforcement overseas. Giambrone & Partners multi-jurisdictional litigation and dispute resolution lawyers can advise you as to the scope of the types of enforcement available to you across the European Union and beyond.
Depending on the value and the jurisdiction involved there are options available to enable enforcement.
Olu Ajasa, a partner, commented "the course of action recommended is largely governed by the jurisdiction in which enforcement is to take place and the ease of enforcement." Olu further commented "despite having left the European Union, resulting in the loss of the reciprocal arrangements across Europe for enforcement of England and Wales, English court orders will be recognised in most major European countries and provide assistance with enforcement. It is strongly recommended that enforcement should be undertaken in through the court of the debtor's home country as soon as possible as the process can take time."
The process of enforcing the court order obtained in England & Wales in a country within the European Union is subject to either an international convention which both the EU Member State and the United Kingdom are contracted or the laws of the particular EU Member State in which you wish to enforce the court order. At present, as the UK re-joined The Hague Convention in January 2021, the Hague Convention is the only convention that both the EU Member States and the UK belong to.
The Hague Convention does have limitations in that it can only apply to disputes where a jurisdiction clause is in the initial commercial agreement between the parties. For cases that are excluded from The Hague Convention, enforcement relies on the local laws of each country. Domestic law from country to country across the European Union is variable.
Giambrone & Partners' litigation and dispute resolution lawyers point out that across the jurisdictions there are many similarities such as a requirement for properly legalised documents, including either the original judgment from the English court or a certified copy, documentary evidence of proof of service on your debtor related to the proceedings and evidence that the judgment is final. Generally, there is a requirement for the documents to be provided together with legalised translations in the language of the country where the enforcement is to take place. There are grounds for refusal to enforce which also vary from country to county. Similarly, time limitations for enforcement vary.
The fact that there are variations in law across the European Union has the potential to deliver differing outcomes. This is a compelling reason to always include a jurisdiction clause as well as an alternative dispute resolution (ADR) clause within a contract. A jurisdiction clause gives certainty as to where a dispute is litigated, should a dispute arise, preventing the opportunity for the other party to commence litigation in a distant or challenging jurisdiction. An ADR clause ensures that every effort to reach a satisfactory resolution by negotiation is the first option, limiting the time and costs associated with litigation.
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.