Enforcement

NML Capital Ltd v Republic of Argentina [2010] EWCA Civ 41, TLR 7 May

A judgment creditor under a US judgment who wishes to enforce it in England should bring an action on the foreign judgment in the English courts. There is no treaty between the US and UK for the mutual recognition and enforcement of judgments. If judgment was obtained, then it would be the English judgment that could then be enforced in England. There had never been any specific rule of court or civil procedure rule that permitted the issue and service out of the jurisdiction of all types of claims against foreign states. Moreover, s12(1) of the State Immunity Act 1978 requires service of proceedings on the State out of the jurisdiction. At the stage when a party seeks permission to issue and serve proceedings out of the jurisdiction on a foreign State, a court has to be satisfied that there is, at least, a good arguable case that the State concerned is not absolutely immune from suit in respect of the proposed proceedings. Therefore, in the absence of any obvious evidence that the defendant in the present case had agreed to submit to the jurisdiction of the English courts, the claimant was bound to put before the court the factual and legal basis on which it said that there was, at least, a good arguable case that the defendant was not immune from suit in the English court in respect of the proposed action on a New York judgment. If the court did not have that information then it will be bound by s1(2) of the 1978 Act, to give effect to the defendant’s immunity as set out in s1(1). In the absence of that information the court could not sanction the transmission of the documents initiating the proceedings to the Foreign and Commonwealth Office for onward transmission to the Ministry of Foreign Affairs of the state concerned.