The Enforcement of Foreign Judgements and Arbitration Awards in the British Virgin Islands
Recognition and Enforcement
Recognition is the court’s willingness to treat the claim as having been determined in favour of a litigating party by a court of competent jurisdiction. If the BVI Courts recognise a foreign judgment, it means that it is satisfied that the decision is res judicata. Enforcement is the implementation of the judgment. It follows that whilst a judgment or award must be recognised to be enforced, it does not need to be enforceable to be recognised.
Enforcement of foreign judgments
In the BVI, the recognition and enforcement of foreign judgments is governed by the Reciprocal Enforcement of Judgments Act (Cap 65) 1922, and common law. The Foreign Judgments (Reciprocal Enforcement) Act 1964 (Cap 27) has been enacted and is expressed to apply to certain designated jurisdictions, but it is generally accepted that the purported designation was not carried out properly and that the act has, therefore, not been effectively extended to any jurisdiction. Accordingly, we will not consider it further here.
The Reciprocal Enforcement of Judgments Act 1922 (Cap 65)
The Reciprocal Enforcement of Judgments Act 1922 (Cap 65) provides a simpliﬁed registration procedure for judgments (and arbitration awards) obtained in the High Court in England and Wales, Northern Ireland, the Court of Session in Scotland, Barbados, Bahamas, Bermuda, Belize, Guyana, Grenada, Jamaica, New South Wales, Australia, Nigeria, St Lucia, St Vincent, and Trinidad & Tobago. Any ﬁnal and conclusive monetary judgment for a deﬁnite sum of money obtained in one of these designated jurisdictions may, subject to complying with certain requirements, be registered and enforced without any further examination of the merits, as a judgment of the BVI Courts if an application is made for registration within twelve months of the date of the judgment (or such longer period as the court may allow).
Common Law Enforcement
Any ﬁnal and conclusive monetary judgment for a deﬁnite sum of money obtained against a debtor in a jurisdiction other than one to which the Reciprocal Enforcement of Judgments Act 1922 (Cap 65) applies would, subject to the restrictions set out below, be treated by the BVI Courts as a cause of action in itself, meaning that no retrial of the issues would be necessary. In such a case it would be usual to commence proceedings in the BVI courts and make an application for summary judgment.
Restrictions on Enforcement
A judgment cannot be registered pursuant to the Reciprocal Enforcement of Judgments Act 1922 (Cap 65) or found an action at common law unless:
- The court is satisfied that it is just and convenient to register the judgment;
- The judgment was made in a court which had jurisdiction, and the judgment debtor either submitted to the jurisdiction of that court or was resident or carrying on business within that jurisdiction, and was duly served with process;
- The judgment given by the court was not in respect of penalties, taxes, ﬁnes, or similar ﬁscal or revenue obligations of the debtor;
- In obtaining the judgment there was no fraud on the part of the person in whose favour the judgment was given or on the part of the court;
- The court is satisfied that recognition or enforcement of the judgment in the BVI would not be contrary to public policy; and
- The court is satisfied that the proceedings pursuant to which the judgment was obtained were not contrary to natural justice.
A court may order the judgment creditor to give security for costs of the application and of any proceedings brought to set aside registration. Notice of the registration of a judgment must be served on the judgment debtor. Where the judgment debtor is outside the court’s jurisdiction, notice may be served out of the jurisdiction without the leave of the court. Once the time for setting aside the registration has passed, the judgment creditor is entitled to commence enforcement proceedings.
Enforcement of Judgments Other than Money Judgments
If a judgment is for something other than money, the claimant has a cause of action under BVI law, and the BVI court has jurisdiction, the claimant may commence proceedings in the BVI arising out of the original cause of action. If the proceedings are defended, the claimant may seek to rely on an issue estoppel arising out of a ﬁnding made by the foreign court such that the BVI High Court will not re-examine those issues of fact. Whilst this is not enforcement of the foreign judgment per se, it does amount to the recognition, in BVI proceedings, of the determination of factual issues by a foreign court.
Enforcement of foreign arbitration awards
The enforcement of foreign and domestic arbitration awards is governed by the Arbitration Act 2013 (“the Arbitration Act”), which is based on the UNCITRAL Model Law on International Commercial Arbitration. The BVI acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”) on 25 May 2013. The Arbitration Act provides for the enforcement of arbitration awards from states that are a party to the New York Convention (a “Convention Award”) and from non-contracting states (a “Non-Convention Award”). Convention Awards and Non-Convention Awards can only be enforced by statute and by issuing insolvency proceedings; Convention Awards can also be enforced at common law.
Arbitration awards will not be enforced if any of the following apply:
- If the award is not final and conclusive i.e. if it is subject to further review or appeal;
- If the court is not satisfied that the arbitration agreement was valid;
- If the arbitration tribunal exceeded the scope of its jurisdiction;
- If there has been a failure to comply with formal requirements under the rules, for example proper authentication or certification;
- Where the arbitration award is based on a dispute that the court regards as non-arbitral e.g. matters involving public law or criminal offences; and
- If the court believes that the arbitration award is contrary to the public policy of the BVI.
A party wishing to enforce an arbitration award must apply to the BVI court for leave. That application must be supported by affidavit evidence, exhibiting an authenticated or certified copy of the original award together with the original or a certified copy of the arbitration agreement. If the arbitration award or agreement is not in English, a certified English translation must be provided. If the court is happy that the application is in order, it will register the arbitration award. Once served with a copy of the court’s order, the debtor can apply to set the order aside on certain grounds including that:
- A party to the arbitration agreement was under some incapacity;
- The arbitration agreement was not valid;
- The award debtor was not given proper notice of the appointment of the arbitrator or the proceedings, or was unable to present their case;
- The award deals with differences not contemplated by or not falling within the terms of the submission, or contains decisions on matters beyond the scope of the submission;
- The composition of the arbitral authority or procedure was not in accordance with the arbitration agreement, or there was no arbitration agreement;
- The arbitration award is not yet binding on the parties or has been set aside by a competent authority of the country in which, or under the law of which, it was made; or
- The arbitration award is in respect of a matter that is not capable of settlement by arbitration under the laws of the BVI, or it would be contrary to public policy to enforce the award.
This note sets out a general overview of the process for recognising and enforcing foreign judgments and arbitration awards in the BVI. If you require further information relating to the procedure, the timeframes, or costs, please contact us, Spencer West BVI. In certain circumstances, it may be possible to proceed based on fixed costs or a fee cap.