In order for a foreign judgment to be enforced in the BVI, it must either be: (1) registered and recognised as enforceable under the Reciprocal Enforcement of Judgments Act 1922 (the “1922 Act); or (2) enforceable under the common law and enforced by a separate claim brought in the BVI. Although the 1922 Act is the most commonly used procedure, it only applies to judgments from certain courts in a small number of jurisdictions. As such, foreign judgments are often enforced in the BVI under the common law. Under the common law test, for a foreign judgment to be enforceable it must, amongst other things, be “final and conclusive” in its jurisdiction of origin.
In the recent case of Invest Bank PSC v Ahmad Mohammed El-Husseini and ors  EWHC 2302 (Comm), the English High Court was required to determine whether a foreign (UAE) judgment could be enforced in England under common law principles, in circumstances where it was (on the court’s own findings) final and conclusive in the UAE, but the UAE courts had ruled it could not be enforced in that jurisdiction (as a result of the enactment of a legislative amendment).
One of the defendants in the Invest Bank case argued that the fact that the judgment was unenforceable in the UAE meant it could not be enforced in England under the common law test. That argument was based, in part, on the English statutory provisions relating to the registration of foreign judgments, pursuant to which a foreign judgment cannot be registered and then enforced in England if it “could not be enforced by execution in the country of the original court” (see s.2(1) of the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the “English Act”)). It was argued that s.2(1) of the English Act also represents the English common law position. The English High Court disagreed. Instead, it determined that the fact that a foreign judgment is unenforceable in its jurisdiction of origin is not an impediment to its recognition or enforcement in England under the common law (as opposed to its registration under the English Act), as it is still “a final and conclusive judgment in the eyes of the common law”.
Given that English High Court decisions are treated as persuasive authority in the BVI, the Invest Bank case is likely to be highly relevant should the same issue arise in any future BVI common law enforcement proceedings.
A copy of the Invest Bank case can be downloaded here.