Enforcement of Foreign Judgments Comparative Guide

• Published date: 23 February 2021
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Arbitration & Dispute Resolution, Court Procedure, Sovereign Immunity: Public Sector Government, Class Actions, Trials & Appeals & Compensation, Civil Law
• Law Firm: McGrath Tonner
• Author: Mr Benjamin Tonner

1 Legal and judicial framework

1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction?

Judgments from foreign countries are recognisable and enforceable in the Cayman Islands pursuant to the common law and, in a limited number of cases, pursuant to the Foreign Judgments Reciprocal Enforcement Law (1996 Revision).

Foreign arbitration awards may be enforced under the Foreign Arbitral Awards Enforcement Law (1997 Revision) (for further details please see here).

1.2 Which bilateral and multilateral instruments on the recognition and enforcement of foreign judgments have effect in your jurisdiction?

The Cayman Islands has not, of its own accord, entered into any international treaties for the reciprocal recognition or enforcement of foreign judgments (save in relation to Australia).

The United Kingdom has extended to the Cayman Islands its ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (for further details please see here).

In the next 12 months, the United Kingdom may sign up to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019. If it does so, it is reasonably likely that the convention will be extended to the Cayman Islands.

1.3 Which courts have jurisdiction to hear applications for the recognition and enforcement of foreign judgments?

Applications for the recognition and enforcement of foreign judgments (whether enforcement is sought at common law or under the Reciprocal Enforcement Law) are heard by the Financial Services Division (FSD) of the Grand Court. The FSD has similar powers to the High Court of England & Wales.

2 Requirements for enforceability

2.1 What types of judgments may be recognised and enforced in your jurisdiction? Are any types of judgments specifically precluded from enforcement?

Are any types of judgments specifically precluded from enforcement?

Money and certain non-money foreign judgments are enforceable in the Cayman Islands at common law, whereas only money judgments are enforceable under the Reciprocal Enforcement Law.

Money judgments are enforceable both at common law and under the Reciprocal Enforcement Law. At common law, money judgments may be enforced if they satisfy the following conditions:

• The judgment is in personam rather than in rem (unless the subject matter of the foreign proceeding was property situated in that foreign country);
• The foreign court had jurisdiction over the party against which the plaintiff is attempting to enforce the judgment (see question 5.2);
• The judgment is not impeachable under the relevant common law rules (see question 4);
• The judgment is final and conclusive (see question 2.2); and
• Proceedings are brought within six years of the date of the judgment (see question 2.4).

Under the Reciprocal Enforcement Law, money judgments can be enforced if they satisfy the following conditions:

• The judgment debtor was properly served (in accordance with the law of the foreign country);
• The judgment originates from one of the jurisdictions to which the Reciprocal Enforcement Law applies (currently only Australia and its territories);
• The foreign judgment is final and conclusive;
• Registration is sought within six years of the date of the judgment; and
• At the date of the application, the judgment has not already been wholly satisfied and is still capable of enforcement in the country of the foreign judgment.

The following judgments are enforceable at common law, but not under the Reciprocal Enforcement Law:

• Judgments ordering or prohibiting the doing of acts: Since the Cayman Islands decision in Bandone v Sol Properties (2008 CILR 301), the ability to enforce directly foreign judgments and orders made in personam is no longer confined to judgments for a debt or definite sum of money. Accordingly, a non-money judgment can be recognised and enforced by way of equitable remedies if the principle of comity requires it. Each case will necessitate the exercise of judicial discretion.
• Declaratory judgments: These are enforceable if they meet the relevant conditions outlined above.
• Judgments made without notice (ex parte): These are enforceable if they meet the relevant conditions outlined above.
• Foreign enforcement orders and (pre-judgment) attachment orders: These are enforceable if they meet the relevant conditions.

The following judgments cannot be enforced either at common law or under the Reciprocal Enforcement Law:

• foreign judgments adjudicating in rem on the title to, or the right to possession of, immovable property in the Cayman Islands (Tartaglia v Colonial Dev Corp Ltd [1996 CILR Note 4b]);
• foreign judgments purporting to declare that a Cayman Islands trust (or disposition in respect of a trust) is void or liable to be set aside, either because the foreign law does not recognise the trust concept or because of heirship, matrimonial or certain other rights that will not be enforced by the foreign court (Trusts Law 2020 Revision, Sections 91-93);
• foreign tax judgments;
• foreign decisions granting provisional measures. However, under Section 11A of the Grand Court Law, the court has jurisdiction to make interim orders (including injunctive orders and orders for the appointment of receivers) in support of foreign proceedings;
• foreign judgments which are repugnant to the Cayman Islands system of law on grounds of public policy; and
• foreign judgments that relate to the penal laws of another country or that impose punitive damages.

2.2 Must a foreign judgment be final and binding before it can be enforced?

Yes, the foreign judgment must be 'final and conclusive' between the parties in the court that gave the judgment in order to be enforceable at common law or under the Reciprocal Enforcement Law.

A foreign judgment may be 'final and conclusive' notwithstanding that it may be subject to an appeal in the foreign courts.

If the judgment is being appealed, however, the Cayman Islands court may decide to grant enforcement subject to conditions which will safeguard the interests of those that have the right to appeal. For example, the court may grant a stay of the execution in respect of its recognition and enforcement decision pending resolution of the foreign appeal.

2.3 Is a foreign judgment enforceable if it is subject to appeal in the foreign jurisdiction?

Under the common law rules, the fact that an appeal is pending in the foreign jurisdiction is not necessarily...