How to enforce a foreign judgment in Bangladesh
Bangladesh has witnessed a surge in cross-border commercial disputes in recent years, and many of which result in a litigated judgment at the host country. Upon obtaining a judgment against an entity/individual in located Bangladesh, how do you enforce it in Bangladesh ? This post briefly examines the challenges and possibilities of enforcing foreign judgments in Bangladesh, taking into account the country’s legal system as well as the real-world conditions that exist there.
Legal Framework
The enforcement of foreign judgments in Bangladesh is governed primarily by the Code of Civil Procedure (CPC) of 1908 and the Foreign Judgments (Reciprocal Enforcement) Act of 1933. Despite the absence of a specific law addressing foreign judgments, these regulations provide a framework under which foreign judgments can be recognized and enforced. A judgment from another country can be enforced either through initiating new litigation or by starting execution procedures, provided certain conditions are met.
Foreign judgements passed by a superior Court of any reciprocating territory are enforceable under section 44A of the Code of Civil Procedure, 1908 of Bangladesh (“CPC”). For the sake of clarity, section 44A of the CPC is reproduced below:
“44A Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory.
(1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in Bangladesh as if it had been passed by the District Court; (2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment; (3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.”
The grounds of refusal of enforcing a foreign judgment is enumurated in section 13 of the CPC, which states:
“13. When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Bangladesh in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in Bangladesh.”
The Government of Bangladesh by notification in the official gazette may declare any country to be the reciprocating territory for the purpose of this section. As of now, Bangladesh has reciprocating arrangements with India and United Kingdom only.
Conditions for Enforcement of a judgment from a reciprocating territorry (i.e. India & United Kingdom)
As per the aforementioned legal framework i.e. section 44A read with section 13 of the CPC, to render a foreign judgment be enforceable in Bangladesh, it must:
- Be from a court of competent jurisdiction.
- Be final and conclusive, not open to appeal or review in its originating jurisdiction.
- Be based on the merits of the case.
- Not contravene the public policy of Bangladesh.
- Not have been obtained by fraud or in violation of principles of natural justice.
Conditions for Enforcement of a judgment from a non-reciprocating territorry
If the judgment is passed by a Superior Court in a non-reciprocating territory (i.e. all the Countries except India and the United Kingdom), the only way of enforcing the judgment is to file a fresh suit with the foreign judgment as evidence. It is notable to mention that the certified copy of the foreign judgment can be considered a “public document” evidence pursuant to Section 74(1)(iii) of the Evidence Act 1872.
A foreign judgment may be enforced by filing a fresh suit using the foreign judgment as evidence of debt and in such a situation, the court will dispose of the suit as a summary suit.
Process of Enforcement of a foreign judgment
First Phase – Reocgnition of the Foreign Judgment
Step One: The party seeking enforcement of a foreign judgment must file a suit in a Bangladeshi court of appropriate jurisdiction, i.e. the district court, within six years from the date of the judgment. The case must be filed with the certified copy of the Judgment, which has to be notarized/authenticated by appropriate authority in the foreign country, and this authentication needs to be supplemented by concerned High Commission/Embassy of Bangladesh. Court fees are calculated based on the nature and value of the case.
Step Two: The court then examines whether the judgment meets the criteria set out in Section 13 of the CPC before proceeding with enforcement. If the opposite party (i.e. the Local Party) contests the case and fails to establish any of the objections enumerated under Clauses (a) to (f) of Section 13 of the code, the judgment of the foreign court is declared to be conclusive as to any matter that is directly adjudicated between the same parties; as such, the judgment will be recognised. However, if the opposite party succeeds to prove its defence under any of the sub-sections of section 13, then the foreign judgment will not be recognised.
Step Three: Once the judgment is recognised, a decree would be passed in terms of the foreign judgment by the Bangladeshi court. Thereafter, the decree can be executed in the manner provided by CPC, i.e. by way of filing an execution suit against the judgment-debtor.
It is notable to mention that both parties may also apply for injunctive relief to the Court, if and when necessary.
Challenges to keep in mind
Enforcing foreign judgments in Bangladesh faces several challenges:
- Outdated Legal Framework: The existing laws are not comprehensive and exclude non-reciprocating countries. As such, almost all the countreis in the world (except for India and the UK) are excluded from the process and thus, may not be supported by the Court procedure stated under section 44A of the CPC.
- Practical Difficulties: Bureaucratic delays, corruption, and a lack of specialized courts or tribunals create inefficiencies. Moreover, even if a foreign judgment is recognized, it can be challenged before the superior court i.e. High Court Division of the Supreme Court of Bangladesh.
- Lack of Legal Awareness: Many individuals and businesses are unaware of the legal procedures, leading to a low number of enforcement applications.
Keeping the above in mind, it may be advised that the parties to proceed with a fresh claim based on the foreign judgment, which appears to be the practice in recent times. It is also pertinent to note that since arbitration has become the norm of commercial dispute resolution in these days, the cases of enforcing foreign judgments have beomce a rare exercise.
Conclusion
Enforcing foreign judgments in Bangladesh is crucial for fostering international trade and investment. While the current system faces significant hurdles, there are clear paths for improvement. By updating its legal framework, establishing specialized courts, enhancing legal awareness, and prioritizing international cooperation, Bangladesh can create a more efficient and reliable system for the enforcement of foreign judgments. This would not only protect the rights of individuals and businesses involved in cross-border disputes but also enhance the country’s reputation as a favorable destination for investment.
Disclaimer: This brief is for general awareness and academic purposes only, and it does not, and is not intended to, constitute or to be construed as legal advice. You are advised to obtain advice from an Advocate with respect to any particular legal matter.