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The enforcement of foreign judgments is the recognition and execution of transnational judgements or decrees passed by a foreign court through the judicial system of another country / territory.
Any such foreign judgement or decree can’t be enforced in a country without it first being “recognized” for the purposes of domesticating under the parameters of Sec. 13 of the Code of Civil Procedure, 1908, thereby making it equal to those judgements passed by the local courts. Such recognized foreign judgement is then brought into effect or “enforced” in accordance with the local laws of the country.
However, the Foreign Judgments / Decrees as are based on an award are excluded from the Definition of a Decree and are not executable under Sec .44-A of the Code of Civil Procedure, 1908. For the enforcement and execution of Arbitral Agreements and Awards, the procedure and parameters are defined under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 is applicable.
RIZWAN & ASSOCIATES - LLP | FOREIGN JUDGMENT ENFORCEMENT
SCOPE OF ENFORCEMENT OF FOREIGN JUDGMENTS IN PAKISTAN
The scope of enforcement of foreign judgments in a territory is often governed by bilateral or multilateral treaties between countries, however some countries also allow recognition and enforcement of judgements, in the absence of any express international treaty, on the basis of doctrine of comity and reciprocity.
Enforcement of foreign judgments is not necessarily confined to cases of money judgments but may also extend to non-monetary judgements and personal status judgements as well. In case of criminal cases, countries adopt the process of extradition, therefore enforcement is often limited to civil or commercial matters.
In Pakistan, enforcement of foreign judgments is done on the basis of principle of reciprocity, that is if the country from which the judgment arises does not recognize the judgments of Pakistani courts, local courts shall not directly enforce such judgment of the foreign court as an executing court. Such judgments / decree may only be used as a conclusive piece of evidence for the final determination of rights between the parties and will form the basis of cause of action to file a fresh suit in Pakistan.
Keeping in view that there are three methods through which a decree holder under a foreign judgement may execute their rights in Pakistan:
Direct execution of the foreign judgement under Sec. 44-A of the Civil Procedure Code,1908, provided that the country rendering the judgement is notified as a reciprocating territory under the Official Gazette of Pakistan;
Filing a suit in Pakistan while treating the foreign judgement as a cause of action to which Article 117 of the Limitation Act, 1908 is applicable; or
Filing a fresh suit for redetermination of the rights of parties.
ENFORCEMENT UNDER CIVIL PROCEDURE CODE, 1908
As mentioned earlier, a decree holder to a foreign judgement may directly execute their rights by filing a certified copy of the same to the District Courts and thereafter such decree shall be treated as if it has been originally passed by the District Court of Pakistan, as per Sec. 44-A of the Civil Procedure Code, 1908. However, such direct execution of a foreign judgement is only enforceable for decrees passed by the superior courts of United Kingdom or any “reciprocating territory”. Here, reciprocating territory includes the United Kingdom or any other country as may notified by the Federal Government under its official Gazette. Such reciprocating territories include Fiji, Singapore, Australian Capital Territory, New Zealand including the Cook Islands and the Trust Territory of Eastern Samoa, Northern Territory of Australian, Australian State of Victoria, States of Queensland and Western Australia, State of Kuwait, UAE and Republic of Turkey.
As a client of the Appellate Practice Group, you will be actively involved at every stage of the appellate process. After analyzing legal theories and strategy, we consult with our clients as we prepare the written brief. Based upon our experience with the appellate decisional process, we understand the importance of well-written, concise and persuasive briefs. While oral argument sometimes can be pivotal in an appeal, there is no substitute for a well crafted brief. On appeal, as in most aspects of life, there is never a second chance to make a first impression. The written brief represents the first opportunity, and thus the most important opportunity, to advance our clients' position.
Any judgement rendered by a non-reciprocating territory can be enforced by the remaining methods as mentioned above.
Furthermore, the applicability of Sec. 44-A is also restricted exclusively to money decrees, excluding money decrees in respect of taxes, fines, penalties, costs and arbitration awards.
Once such preconditions are satisfied and the certified copy of such foreign judgment is filed before the District Court, such judgment will then be examined in light of the provisions of Sec. 13 of the Code of Civil Procedure, 1908. As per Sec. 13, a foreign judgment is conclusive as to any matter directly adjudicated upon between the same parties except in certain cases. Any person seeking to enforce a foreign judgement must show that the exception provided under Sec. 13 are not attracted. These exceptions include:
Where the judgment has not been pronouncement by a court of competent jurisdiction: The competency of a foreign court is determined by the territorial competence of the foreign court over the defendant or the subject matter of the suit, i.e., the subject matter and / or the defendant resides within the foreign territory rendering the judgment. It is however, pertinent to mention here that, as per Sec. 14 of the Code of Civil Procedure, 1908 there is a reputable presumption upon production of the certified copy of a foreign judgement, that such foreign judgment was passed by a court of competent jurisdiction. Such competency of the foreign court shall only be brought into question if the same is apparent from the record or is rebutted otherwise through cogent piece of evidence;
Judgment is not given on the merits of the case;
It appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognized the law of Pakistan in such cases where it is applicable;
The proceedings in which the judgment is obtained are opposed to natural justice;
The judgment is obtained by fraud; and
The judgment sustains a claim founded on a breach of any law in force in Pakistan.
Once such foreign judgment passed by a reciprocating territory is examined in terms of Sec. 13, the court will then issue notices to the judgment debtor to show cause why execution should not be ordered.
A foreign judgment passed by any country other than a reciprocating territory, may enforce the same by either filing a suit using the judgment as a cause of action, provided the same satisfies the provisions of Sec. 13. The decree holder may also institute a fresh suit on the original cause of action in Pakistan.