Enforcement of Foreign Judgments in 28 jurisdictions ...

1 Enforcement of Foreign Judgmentsin 28 jurisdictions worldwideContributing editors: Mark Moedritzer and Kay C Whittaker 2012 Published byGetting the Deal Throughin association with: Advokatfirman Delphi KBArnauts AttorneysArzingerBeiten BurkhardtBraddell Brothers LLPB uren van Velzen Guelen NVCarey OlsenChuo Sogo Law Office PCClayton UtzEndr s-Baum Associ sFelsberg e AssociadosGoldenGate LawyersHarris Kyriakides LLCHoet Pelaez Castillo & DuqueHwang Mok Park PCJuris Corp, Advocates & SolicitorsMiller Thomson LLPOPF PartnersPerez Bustamante & PonceSchmitz & Partner Rechtsanw lteSedgwick ChudleighSerap Zuvin Law OfficesShook, Hardy & Bacon LLPS hook Hardy & Bacon International LLPS treamsowers & K hnVillaraza Cruz Marcelo & AngangcoWalder Wyss LtdWerksmans AttorneysGlobal Overview Mark Moedritzer and Kay C Whittaker Shook, Hardy & Bacon LLP 3 Australia Colin Loveday and Sheena McKie Clayton Utz 5 Belgium Laurent Arnauts and Isabelle Ven Arnauts Attorneys 10 Bermuda Chen Foley.

2 Mark Chudleigh and Nick Miles Sedgwick Chudleigh 16 Brazil Marcus Alexandre Matteucci Gomes and Fabiana Bruno Solano Pereira Felsberg e Associados 21 Canada John K Downing, Jennifer J Quick, Sherry A Kettle and Joel G Belisle Miller Thomson LLP 25 China Tim Meng GoldenGate Lawyers 31 Cyprus Michalis Kyriakides, Olga Shelyagova and Asrin Daoudi Harris Kyriakides LLC 35 Ecuador Rodrigo Jij n Letort and Juan Manuel Marchan Perez Bustamante & Ponce 40 France Christoph Schultheiss Endr s-Baum Associ s 44 Germany Stephan Kleemann and Stefanie Burkhardt Schmitz & Partner Rechtsanw lte 50 Guernsey Mark Dunster and Sophia Harrison Carey Olsen 56 India Mustafa Motiwala, Dhirajkumar Totala and Neha Samant Juris Corp, Advocates & Solicitors 62 Japan Masahiro Nakatsukasa Chuo Sogo Law Office PC 67 Korea Woo Young Choi, Sang Bong Lee and Dong Hyuk Kim Hwang Mok Park PC 72 Luxembourg Christel Dumont and Guy Perrot OPF Partners 76 Netherlands Philip WM ter Burg and Femke Faes Buren van Velzen Guelen NV 80 Nigeria Etigwe Uwa, SAN, Adeyinka Aderemi and Chinasa Unaegbunam Streamsowers & K hn 86 Philippines Simeon V Marcelo Villaraza Cruz Marcelo & Angangco 91 Russia Alexander Bezborodov and Nikita Rodionov Beiten Burkhardt 97 Singapore Edmund Jerome Kronenburg, Tan Kok Peng and Charmaine Cheong Braddell Brothers LLP 103 South Africa Roger Wakefield Werksmans Attorneys 108 Sweden Sverker Bonde, Polina Permyakova and Anna Backman Advokatfirman Delphi KB 115 Switzerland Dieter A Hofmann and Oliver M Kunz Walder Wyss Ltd 120 Turkey Serap Zuvin, Melis Oget Koc and T Gokmen Bolayir Serap Zuvin Law Offices 126 Ukraine Timur Bondaryev.

3 Markian Malskyy and Volodymyr Yaremko Arzinger 131 United Kingdom Mark Tyler Shook Hardy & Bacon International LLP 136 United States Mark Moedritzer and Kay C Whittaker Shook, Hardy & Bacon LLP 143 Venezuela Carlos Dominguez Hoet Pelaez Castillo & Duque 149 Enforcement of Foreign Judgments 2012 Contributing editors Mark Moedritzer and Kay C Whittaker Shook, Hardy & Bacon LLPB usiness development managers Alan Lee George Ingledew Robyn Hetherington Dan WhiteMarketing managers Ellie Notley Sarah Walsh Alice Hazard Marketing assistants William Bentley Sarah Savage Business development manager (subscriptions) Nadine Radcliffe editor Adam MyersEditorial assistant Lydia Gerges Senior production editor Jonathan CowieChief subeditor Jonathan AllenSubeditors Caroline Rawson Davet Hyland Sarah Morgan Editor-in-chief Callum CampbellPublisher Richard DaveyEnforcement of Foreign Judgments 2012 Published by Law Business Research Ltd 87 Lancaster Road London, W11 1QQ, UK Tel: +44 20 7908 1188 Fax: +44 20 7229 6910 Law Business Research Ltd 2011 No photocopying: copyright licences do not 2048-464 XThe information provided in this publication is general and may not apply in a specific situation.

4 Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. Although the information provided is accurate as of October 2011, be advised that this is a developing and distributed by Encompass Print Solutions Tel: 0844 2480 112 LawBusinessResearchCONTENTS South AfricA Werksmans Attorneys108 Getting the Deal Through Enforcement of Foreign Judgments 2012 South AfricaRoger WakefieldWerksmans Attorneys1 TreatiesIs your country party to any bilateral or multilateral treaties for the reciprocal recognition and Enforcement of Foreign Judgments ? What is the country s approach to entering into these treaties and what, if any, amendments or reservations has your country made to such treaties?

5 South Africa is not party to any treaty regarding the reciprocal Enforcement of Foreign commercial Judgments , as opposed to for-eign arbitral is no clear indication of South Africa s approach to enter-ing into such treaties, but it may consider them unnecessary because the topic is adequately dealt with by South African statutory and common Reciprocal Enforcement of Civil Judgments Act 9 of 1966 was intended to facilitate the recognition and Enforcement of Foreign civil Judgments and was founded on reciprocity. South Africa, how-ever, was unable to conclude mutually acceptable agreements with Foreign governments and this prevented the Act from coming into operation. South Africa s inability to conclude such agreements may also explain why it has not entered into any multilateral reciprocal treaties on Enforcement of Foreign Reciprocal Enforcement of Civil Judgments Act 9 of 1966 was repealed by the Enforcement of Foreign Civil Judgments Act 32 of 1988, which is not based on Intra-state variationsIs there uniformity in the law on the Enforcement of Foreign Judgments among different jurisdictions within the country?

6 The law on the Enforcement of Foreign Judgments is uniform through-out South Sources of lawWhat are the sources of law regarding the Enforcement of Foreign Judgments ? Enforcement of Foreign Judgments is governed in South Africa gen-erally by common law and, in specific cases (dealt with in question 10), by statute, in the latter case by the Enforcement of Foreign Civil Judgments Act 32 of Hague Convention requirementsTo the extent the enforcing country is a signatory of the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, will the court require strict compliance with its provisions before recognising a Foreign judgment?As mentioned, South Africa is not a signatory to the Hague Conven-tion on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Limitation periodsWhat is the limitation period for Enforcement of a Foreign judgment?

7 When does it commence to run? In what circumstances would the enforcing court consider the statute of limitations of the Foreign jurisdiction?In terms of section 11(d) of the Prescription Act 68 of 1969, claims are extinguished by prescription three years after they terms of section 12(3) of the Act, prescription begins to run (ie, a claim arises) from the date on which the creditor has knowl-edge of the identity of the debtor and of the facts from which the debt to the principles of South African private international law, matters of procedure are governed by the domestic law of the country in which the relevant proceedings are instituted (the lex fori). Matters of substantive law, however, are governed by the law that applies to the underlying transaction or occurrence (the lex causae).In South African law, prescription is regarded as substantive.

8 Therefore, a South African court seized with the question of whether a claim to the Enforcement of a Foreign judgment has prescribed will apply the relevant Foreign may arise, however, where the application of the for-eign law results in a conflict of laws or a gap between the two systems of Supreme Court of Appeal (South Africa s highest court in non-constitutional matters) in Society of Lloyds v Price; Society of Lloyds v Lee (5) SA 393 (SCA) laid down the approach for dealing with such conflict. The facts in that case were as follows: the Society of Lloyd s sought to enforce default Judgments obtained in the High Court of Justice, London against the South African-based defendants more than three years, but less than six years, before the summonses seeking Enforcement were served on the defendants in South Africa.

9 The defendants alleged that the plaintiff s right to enforce the Judgments in South Africa had been extinguished by prescription in terms of section 11(d) of the South African Prescription Act; in determining the question of prescription, being a matter of substantive law, the court looked to the lex causae (ie, English law of prescription) as being the applicable law; and under English law, however, prescription is a procedural matter and therefore the lex fori (ie, the law of South Africa) was held that the appropriate way of dealing with the gap was to adopt a via media approach, which entailed three stages: a provisional determination of whether, in terms of South African law, prescription in terms of the Prescription Act was substantive or procedural; a provisional determination of whether, in English law, prescrip-tion in terms of the English legislation was substantive or proce-dural; 109 Werksmans Attorneys South AfricA a final determination, taking into account policy considerations, of which legal system had the closest and most real connection with the legal dispute before the applying the test the court held that: prescription was substantive in terms of the lex fori; prescription was procedural in terms of the lex causae; and considerations of policy, international harmony of decisions, jus-tice and convenience dictated that the gap had to be resolved by dealing with the question of prescription in terms of the lex causae.

10 This was so because the contract in terms of which the defendants had been sued in the English court were governed by English law and because the English law was also the system that had the closest and most real connection with the question of terms of English law a claim for Enforcement of a judgment pre-scribes after the expiry of six years from the date on which the judg-ment became enforceable. The South African court accordingly held that the Foreign Judgments had not prescribed and were enforceable in South Types of enforceable orderWhich remedies ordered by a Foreign court are enforceable in your jurisdiction? Certain types of Foreign Judgments are enforceable in South Africa if the requirements outlined in question 10 are met. Foreign money Judgments are frequently enforced in South Africa. Foreign Judgments relating to property situated in South Africa, however, will not be enforced in South Africa because the Foreign court would not have had jurisdiction over immoveable property situated in South Africa.