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Litigation in Malta: Enforcement of foreign judgments

The following is a Lexology Q&A report compiled by Dr. Karl Briffa and Dr. Carina Vassallo. GVZH is the exclusive contributor for Malta for this area.

General framework

Domestic law

Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?

The recognition and enforcement of foreign judgments is governed by the sections in Title V of the Code of Organisation and Civil Procedure (COCP [Chapter 12 of the Laws of Malta]) entitled ‘Of the Enforcement of Judgments of Tribunals of Countries Outside Malta’. Article 826 of the COCP stipulates that “(…) any judgment delivered by a competent court outside of Malta and constituting a res judicata may be enforced by the competent court in Malta (…).”

Article 825A of the COCP stipulates that the provisions in Title V shall only apply in so far as they are not inconsistent with the provisions of regulations of the European Union and that the said regulations shall prevail.

International conventions

Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?

Malta is an EU Member State, and therefore EU regulations apply directly without the need of any further implementation.

The most notable pieces of legalisation regarding enforcement and recognition of foreign judgments are:

  • the Brussels I Recast Regulation [1215/2012) which lays down the enforcement and recognition procedure for judgments pronounced in an EU Member State;
  • the Brussels I Regulation (44/2001) which applies to judgments given in legal proceedings instituted before 10 January 2015.
  • The EU European Enforcement Order for uncontested claims (805/2004) which enables Court of origin to certify a judgment as a European enforcement order for uncontested claims. The judgment is then enforceable across the EU.

Malta is also a party to the ‘new Lugano Convention 2007’ on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial matters which is ratified by EU Member States and regulates the enforcement of civil and commercials matters between EU Member States, Iceland, Norway and Switzerland.

The questions below shall be answered in relation to Brussels I Regulation, Brussels I Recast Regulation and the new Lugano Convention 2007.

Competent courts

Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?

Cases on the recognition and enforcement of foreign judgments are generally heard before the First Hall Civil Court.

Distinction between recognition and enforcement

Is there a legal distinction between the recognition and enforcement of a judgment?

In order for a judgment to be enforced it must first be recognised. Recognition is giving the foreign judgment the same effect in Malta as the judgment has in the country where it was decided. Enforcement is generally understood as the process of executing the judgment, therefore once a judgment has been recognised, it can then be enforced in Malta in the same way as a domestic judgment.

Ease of enforcement

In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?

With respect to judgments which fall under the Brussels I Recast Regulation the recognition and enforcement procedure is quite straightforward, as a judgment which is enforceable in the Member State which pronounced the judgment shall be enforceable in Malta without any declaration of enforceability (look at Article 36 and 39 of).

With respect to legal proceedings which were instituted before 1st January 2015 and thus fall within the Brussels I Regulation, the judgment creditor would have to file an application before the Maltese court thereby including all the formalities required in terms of Article 53 of the said Regulation. Once the formalities are met the judgment shall be declared enforceable.  This procedure is also found in the Lugano Convention.

With respect to judgments which fall outside the scope of the above Regulations and Convention (hereinafter referred to as “non-EU judgments”), a res judicata judgment may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered.

Reform

Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?

There are no known reforms to the framework on Recognition and Enforcement of Judgments in Malta.

Conditions for recognition and enforcement

Enforceable judgments

Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?

The Brussels I Recast Regulation, the Brussels I Regulation and the Lugano Convention define ‘judgment’, as any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. It does not however apply to the status or legal capacity of natural persons, matrimonial matters, wills and succession, social security matters, arbitration and bankruptcy/winding up proceedings.

With respect to non-EU judgments the COCP provides that any judgment delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta as long as the judgment: is not contrary to Maltese public policy or internal public order; has not been given in default if the parties are not contumacious according to foreign law; may not be set aside on any of the grounds mentioned in Article 811 of the COCP (these grounds are tackled later on in this questionnaire).

How are foreign judgments subject to appeal treated?

Brussels I Regulation & Lugano Convention
With respect to judgments which fall under the Brussels I Regulation and the Lugano Convention the Maltese court may stay the proceedings if an ordinary appeal against the judgement has been sought (Article 37).

Brussels I Recast Regulation
Regarding judgments which fall under Brussels I Recast Regulation, the Maltese court may suspend the proceedings in whole or in part if the judgment is challenged in the Member State of origin (Article 38 (a)).  Any interested party may also file an application requesting that the enforcement of the judgment is refused, and once the decision is given a party may appeal. The court that hears the appeal may stay the proceedings if an ordinary appeal has been lodged against the judgment in the Member State of origin (Article 51).

Non-EU Judgments
In accordance with Article 826 of the COCP any judgment delivered by a competent court outside of Malta has to be a res judicata in order for enforcement to occur.

Formal requirements

What are the formal and documentary requirements for recognition and enforcement of foreign judgments?

Brussels I Regulation & Lugano Convention
With respect to judgments which fall under the Brussels I Regulation and the Lugano Convention, the following documentation is required:

  • an application before the First Hall Civil Court, requesting the court for recognition and enforceability of the judgment;
  • an authenticated copy of the judgment and authenticated translation in the English or Maltese language;
  • the certificate in the form in Annex V which is issued by the court of the Member State where the judgment was given (Article 54).

Brussels I Recast Regulation
A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. A person who wishes to enforce a judgment must provide the court with the following documentation:

  • a certified copy of the judgment;
  • certificate issued by the state of origin that certifies the enforceability and stipulates the details of the judgment;
  • certified translations into the English or Maltese language.

Non-EU judgments
With respect to judgments pronounced by jurisdictions which are not party to the afore-mentioned Regulations or Convention the following documentation is required:

  • an application filed before the court requesting the court for recognition and enforceability of the judgment;
  • the foreign judgment and a certified translation into the English or Maltese Language;
  • certification that the judgment is a res judicata.

Substantive requirements

What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?

The courts of Malta are not permitted to review the foreign judgment on the merits or substance. The Brussels I Regulation, Brussels I Recast Regulation and Lugano Convention all prohibit the court in the Member State addressed to review the judgment on its substance.

Limitation period

What is the limitation period for enforcement of a foreign judgment?

The Brussels I Recast Regulation, Brussels Regulation and the Lugano Convention do not provide for a limitation period for enforcement of a foreign judgment, what is necessary is that the judgment remains enforceable in the country of origin.

As a general rule, judgments given by the Frist Hall Civil Court may be enforced within ten years, once this period lapses an application must be filed requesting the court to enforce said judgment (Article 258 of the COCP).

Grounds for refusal

On what grounds can recognition and enforcement be refused?

Brussels I Regulation & Lugano Convention
With respect to judgments which fall under the Brussels I Regulation and Lugano Convention, it is clear that the judgment shall be declared enforceable immediately on completion of the formalities stipulated in Article 53. The person aggrieved may then file an appeal before the Court of Appeal on the following grounds (found in Article 34 and 35):

  • the judgment is contrary to Maltese public policy;
  • where judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings;
  • the judgment is irreconcilable with a judgment given in a dispute between the same parties in Malta;
  • the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties;
  • the judgment conflicts with jurisdiction matters relating to insurance, consumer contracts or exclusive jurisdiction as defined in the Regulation and Convention.

Brussels I Recast Regulation
With respect to judgments falling under the Brussels I Recast Regulation any interested party may file an application requesting the refusal of recognition or enforcement based on any of the grounds mentioned above (Article 45).  In addition to the abovementioned grounds the Brussels I Recast Regulation also provides a ground when the judgment conflicts with jurisdiction matters relating to employment contracts when the employee was the defendant.

Non-EU judgment
A non-EU judgment may be refused recognition and enforcement if the judgments falls within any of the scenarios stipulated in Article 827 of the COCP which are:

  • judgment was given in default of appearance were the parties were not contumacious according to foreign law.
  • judgment is contrary to public policy or the internal public law of Malta.
  • if the foreign judgment may be set side on any of the following grounds mentioned in article 811 of the COCP:
    • where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party;
    • where the application was not served on the party cast, provided that, notwithstanding such omission, such party shall not have entered an appearance at the trial;
    • where any of the parties to the suit was under legal disability to sue or be sued, provided no plea had been raised and determined;
    • where the judgment was delivered by a court having no jurisdiction;
    • where the judgment contains a wrong application of the law;
    • where judgment was given on any matter not included in the demand;
    • where judgment was given in excess of the demand;
    • where the judgment is conflicting with a previous judgment given in a suit on the same subject-matter and between the same parties, and constituting a res judicata, provided no plea of res judicata had been raised and determined;
    • where the judgment contains contradictory dispositions;
    • where the judgment was based on evidence which, in a subsequent judgment, was declared to be false or which was so declared in a previous judgment but the party cast was not aware of such fact;
    • where, after the judgment, some conclusive document was obtained, of which the party producing it had no knowledge, or which, with the means provided by law, he could not have produced, before the judgment;
    • where the judgment was the effect of an error resulting from the proceedings or documents of the cause.

Service of process

To what extent does the enforcing court review the service of process in the original foreign proceedings?

As stated in the previous question, in accordance with the Brussels I Regulation and Lugano Convention, the Maltese courts at first instance do not have a right to review, and it is only in the situation where the defendant appeals that the Court of Appeal will look into the Service (should this be the ground of appeal), it must emanate from the documentation that the defendant was not served with the document which instituted the foreign proceedings.

Under the Brussels I Recast Regulation, any interested party may file an application requesting the refusal of enforcement where the judgment was given in default of appearance if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so [Article 45 (1) (b)].

Regarding non-EU judgments, the Maltese court has the right to do so as provided for in Article 827 of the COCP mentioned in the previous question.

Public policy

What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?

Public policy issues which are considered by the Maltese court may include:

  • cases where interest rates exceed that permitted by Maltese law which is eight percent (8%) (vide judgment in the names of “Avukat Edward Debono noe vs Jean Pierre sive Jean Borg” delivered by the Court of Appeal on the 16th September 2016).
  • cases where the foreign procedure is fundamentally contrary to principles of natural justice as applied in Malta.
  • matters that constitute a criminal offence in Malta.

Jurisdiction

What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?

In accordance with the Brussels I Regulation and Lugano Convention (Article 35) the Maltese court may only review and refuse to recognise a judgment if the judgment conflicts with the rules on jurisdiction in relation to: insurance matters; consumer contracts; and with respect to claims which are particularly close to the Member State in which the object of the claim is made such as rights relating to immovable property.

All the above-mentioned are also found in the Brussels I Recast Regulation with the addition of individual contracts of employment.

Regarding non-EU judgments, the Maltese court has the right to do so as provided for in Article 827 of the COCP mentioned in the section of ‘Grounds for refusal’.

Concurrent proceedings and conflicting judgments

How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?

Brussels I Regulation & Lugano Convention
With respect to judgments which fall under the Brussels I Regulation and Lugano Convention, it is clear from Article 41 that a judgment shall be declared enforceable immediately on completion of the formalities found in Article 53.  The decision on the application for a declaration of enforceability may be appealed and the Court of Appeal shall refuse or revoke a declaration of enforceability if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought.

Brussels I Recast Regulation
With respect to judgments falling under the Brussels Recast Regulation any interested party may file an application requesting the refusal of recognition based on the ground mentioned above (Article 45).

Non-EU judgment
A non-EU judgment may be refused recognition and enforcement where the judgment is conflicting with a previous judgment given in a suit on the same subject-matter and between the same parties, and constituting a res judicata, provided no plea of res judicata had been raised and determined.

Opposition

Defences

What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?

Brussels I Regulation & Lugano Convention
Under the Brussels I Regulation and the Lugano Convention, upon the completion of the formalities in Article 53 the court must enforce the judgment. The party against whom enforcement is sought shall not be entitled to make any submissions on the application.  The party may appeal on the grounds stipulated in Article 34 and 35 of the Regulation and the Convention which include:

  • the judgment is contrary to Maltese public policy;
  • where judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings;
  • the judgment is irreconcilable with a judgment given in a dispute between the same parties in Malta;
  • the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties;
  • the judgment conflicts with jurisdiction matters relating to insurance, consumer contracts or exclusive jurisdiction as defined in the Regulation and Convention.

Brussels I Recast Regulation
Under the Recast Brussels Regulation judgments are automatically enforceable however any interested party may by application request that the recognition of a judgment be refused based on the grounds stipulated in Article 45, which are the same grounds as found in Brussels I Regulation and Lugano Convention stipulated above. The Brussels I Recast Regulation also provides a ground when the judgment conflicts with jurisdiction matters relating to employment contracts when the employee was the defendant.

Non-EU Judgments
With respect to the enforcement of non-EU judgments, the losing party may bring defences based on the grounds stipulated in section ‘Grounds for Refusal’ above.

Injunctive relief

What injunctive relief is available to defendants (eg, anti-suit injunctions)?

Anti-suit injunctions are not catered for under Maltese Law.

The defendant is afforded several options to challenge the recognition or enforcement of a judgment (see ‘Grounds of Refusal’ above).

Recognition and enforcement procedure

Formal procedure

What is the formal procedure for seeking recognition and enforcement of a foreign judgment?

Brussels I Regulation and Lugano Convention
The party must file an application before the Maltese court requesting the recognition and enforcement of the foreign judgment and attach:

  • a copy of the judgment which satisfies the conditions necessary to establish its authenticity and a certified translation into the English or Maltese language; and
  • the certificate issued by the foreign court in the standard form found in Annex V of the regulation.

The application must be served on the defendant.

The court must declare the judgment enforceable once the above-mentioned formalities are met. The defendant will have the right to appeal based on the grounds mentioned in the ‘Grounds for refusal’ section above.

Brussels I Recast Regulation
In accordance with Article 39, a judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member State without any declaration of enforceability being required.  The party wishing to enforce the judgment must obtain the certificate set out in Annex I from the court of origin (Article 53) and provide the court with the mentioned certificate and a copy of the judgment and any translations into the English or Maltese language. The mentioned certificate and judgment must be served on the person against whom the enforcement is sought prior to the first enforcement measure.

Non-EU judgment
Article 826 of the COCP provides that any judgment delivered by a competent court outside Malta and constitutes a res judicata may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered.

Timeframe

What is the typical timeframe for the proceedings to grant recognition and enforcement?

There is no typical timeframe in Malta for the proceedings to grant recognition and enforcement of foreign judgments.

Fees

What fees apply to applications for recognition and enforcement of foreign judgments?

The fees which apply to applications for recognition and enforcement of foreign judgments are generally below EUR100.

Security

Must the applicant for recognition and enforcement provide security for costs?

No, it is not necessary for the applicant to provide security for costs. Security will be required should an appeal be filed.

Appeal

Are decisions on recognition and enforcement subject to appeal?

Brussels I Regulation and Lugano Convention
The judgment shall be declared enforceable immediately on completion of the formalities in Article 53, and it is only under specific grounds that a party may appeal – please refer to ‘Grounds of refusal’ above.

Brussels I Recast Regulation
Judgments which fall under this Regulation are automatically recognised and enforceable. An application may be filed requesting the refusal of said recognition or enforcement based on the grounds stipulated in ‘Grounds for refusal’ above.

Non-EU judgments
A party may file an appeal.

Other costs

How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?

When a party files an application, it must include the currency used in Malta which is the Euro. Interest rates cannot be granted more than 8% as this would go against Maltese public policy.

Enforcement against third parties

To what extent can the courts enforce a foreign judgment against third parties?

Generally, Maltese courts do not enforce a foreign judgment against third parties.

Partial recognition and enforcement

Can the courts grant partial recognition and enforcement of foreign judgments?

The courts may grant partial recognition and enforcement of a foreign judgment, for instance when interest exceeds 8% as that goes against Maltese public policy, the part of the interest would not be granted enforcement.

PUBLISHED BY: GVZH Advocates

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