In today’s modern EU world, the question on enforceability of foreign judgements is more relevant than ever. The general rule is established in the Code of Organisation and Civil Procedure (“COCP”), which holds that “any judgement delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta.” However, as with all general rules, exceptions are part and parcel thereto.
Before delving deeper, it is important to note that the COCP essentially establishes that with regards to the enforceability of foreign judgements, EU law (where applicable) is to reign supreme. Therefore, we temporarily divert our attention to Chapter II of Regulation (EU) 1215/2012, (“the Recast Brussels Regulation”), which regulates the enforceability of judgements given in an EU Member State in other Member States. As one may expect, owing to the intrinsic principles and values of the European Union in itself, the exceptions to the enforceability of judgements coming from within the EU and falling within the scope of the Recast Brussels Regulation are far and fair fewer than the exceptions to the rule of enforcement established in the COCP.
The Recast Brussels Regulation holds that judgements recognised in an EU Member State shall be recognised in other EU Member States without any special proceeding being required. As for enforcement, a judgement given in a Member State which is enforceable in that Member State shall be enforceable in other Member States without any declaration of enforceability being required. Without diving deeper, it is safe to say that enforceability of an EU judgement is a rather straightforward and clear-cut procedure.
Exceptions to the enforceability of EU judgements
At the outset, the Recast Brussels Regulation is only applicable to civil and commercial matters and shall not extend to revenue, customs, or administrative matters. Any judgements consisting of matters falling outside the scope of the Recast Brussels Regulations are consequently regulated by the COCP despite emanating from within EU.
For matters falling within the scope of Recast Brussels Regulation, judgement debtors may only rely on one of the specific remedies listed in the regulation and must make their defence vis-à-vis an application to be filed in the applicable Court. The main grounds of refusal may be summarised as follows:
1. The public policy exception
Arguably the only exception offering legroom for deliberation, judgements that are manifestly contrary to public policy shall be refused recognition. The European Court of Justice (“ECJ”) has explored this exception in great detail and has established rules to determine what may be considered as public policy. Frequently used as a defence of last resort, the public policy exception is often rejected. Naturally, it is not enough for a foreign judgement to be contrary to national law for the public policy exception to stand. For the defence to stand, as highlighted in the Krombach case (C-7/98), judgements against public policy must result from a manifest breach of a rule of law which is deemed fundamental within a legal order.
2. Judgements given in default of appearance
This exception is only applicable if the defendant was not served with the document instituting proceedings according to law and in a timely manner adequately required to arrange a defence. Further, this exception will not apply if the defendant failed to commence proceedings to challenge the judgement when possible to do so.
3. The Ne Bis in idem exceptions
Judgements may be refused enforcement if they are irreconcilable with an earlier judgement given between the same parties in the Member State addressed. Similarly, judgements may be refused enforcement if they are irreconcilable with an earlier judgement given in another Member State or in a third state, involving the same cause of action and between the same parties. The latter defence will only stand if the earlier judgement fulfils the conditions necessary for its recognition in the Member State addressed.
4. Jurisdiction-related exceptions
The general rule is that the defence of lack of jurisdiction should be raised in limite litis. However, the Recast Brussels Regulation allows for a few exceptions, namely, that the defence may be raised when there is a breach of exclusive jurisdiction (as defined in the Recast Brussels Regulation) and in contractual related matters involving weaker parties (as specifically defined in the Recast Brussels Regulation) as the defendant.
A greater range of exceptions under the COCP
With regards to judgements from the EU falling outside the scope of Recast Brussels Regulations, or judgements coming from outside the EU, the rules of enforcement of judgements emanating from the COCP are to apply. The COCP allows for a considerably wider array of defences than those allowed under the Brussels I regulation. By way of example, as exceptions to enforceability, the COCP encapsulates all the 12 grounds of Re-Trial (amongst other defences) as legitimate defences to the enforcement of foreign judgements.
This article was written by Legal Associate Dr Gigi Gatt.
For more information on the enforcement of foreign judgements in Malta, please contact Dr Ian Gauci.