Enforcement of Foreign Judgments Comparative Guide -

1 Legal and judicial framework

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

The Code of Civil Procedure 1908 governs the recognition and enforcement of foreign judgments in Bangladesh. A judgment of a foreign country cannot be enforced in Bangladesh in the absence of any reciprocating agreement.

‘Reciprocating territory' refers to such countries or territories as the government may, from time to time, by notification in the Official Gazette, declare to be reciprocating territories for the purposes of this section.

For a judgment passed by a Court in a non-reciprocating territory, the judgment can be considered a "public document" evidence pursuant to Section 74 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.

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

N/A

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

The decree of a superior court of any reciprocating territory can be executed in Bangladesh by filing a certified copy of the same in a district court. In this regard, ‘district court' means the court of the district judge. Thus, the district court has the jurisdiction to hear applications for the recognition and enforcement of foreign judgments. Each District Judge has the jurisdiction to entertain an application for the enforcement of foreign judgment to be enforced against the defendant whose place of business is located in the respective District.

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?

A foreign judgment must not be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under which they or any of them claim litigation under the same title, except where the judgment:

has not been passed by a court of competent jurisdiction;
has not been passed on the merits of the case;
is founded on an incorrect view of international law;
has been obtained by fraud; or
upholds a claim in violation of any law in force in Bangladesh.

Thus, foreign judgments other than the categories mentioned above (as per Section 13, Clauses (a) to (f) of the Code of Civil Procedure) can be recognised and enforced in Bangladesh.

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

Under Section 2(2) of the Code of Civil Procedure, ‘decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. A decree may be either preliminary or final. A ‘foreign judgment' is defined under Section 2(6) as a judgment of a foreign court. ‘Judgment' as per Section 2(9) of the code is the statement provided by the judge on the grounds of a decree or order. ‘Order' is defined under Section 2(14) of the code as a formal expression of any decision of the Civil Court, which is not a ‘decree'. Thus, a judgment passed by a foreign court should be conclusive and should be passed on the merits.

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

It seems, from a plain reading of the relevant sections of the Code of Civil Procedure, that there is nothing in the code which bars enforcement of a foreign judgment if it is subject to appeal in that jurisdiction. There seems to be no requirement that the judgment have been passed by a court of final instance, although there remains the likelihood of such judgment being subsequently challenged or even overturned, thereby having an impact on the outcome of the enforcement proceedings in Bangladesh. If no appeal is filed against the judgment and decree of the court of first instance, it will be assumed to be final adjudication.

2.4 What is the limitation period for making an application for recognition and enforcement?

Pursuant to Article 117 of the Schedule to the Limitation Act 1908, the period of limitation for filing suit upon a foreign judgment as defined in the code is six years from the date of the judgment.

3 Recognition and enforcement process

3.1 Is recognition of a foreign judgment a separate process from enforcement and does it have separate legal effects?

There is a difference between recognition and enforcement of judgments. Section 13 of the Code of Civil Procedure sets out the limitations on the recognition of a foreign judgment. Where the holder of a foreign decree approaches the appropriate court in Bangladesh to which the provisions of the code apply, unless the opposite party succeeds in establishing 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, in order to enforce, a decree must be passed in terms of the foreign judgment by the Bangladeshi court. Thereafter, the decree can be executed in the manner provided by the code.

3.2 What is the formal process for recognition and enforcement?

To make a foreign judgment conclusive in Bangladesh, it must be shown that it complies with the six conditions stipulated under Section 13 of the code. If the judgment falls within any one of these conditions, it will not be considered conclusive and consequently will not be legally effective and binding.

3.3 What documents are required in support of an application for recognition and enforcement?

A certified copy of the judgment is required in support of an application for recognition and enforcement of a foreign judgment (Section 14 of the Code of Civil Procedure).

3.4 What fees are payable for recognition and enforcement?

The court fees would depend on the value of the suit for enforcement and depending on the value in each case, the fees will have to be calculated.

3.5 Is the applicant required to provide security for costs?

This will generally depend on the order of the court. Should the court decide to issue such an order upon an application, security for costs may have to be provided. However, there is no compulsory or automatic requirement for an applicant to provide security for costs.

3.6 How long does it usually take to obtain a declaration of enforceability?

There is no fixed timeline for obtaining a declaration of enforceability. Since this kind of situation is very rare in Bangladesh, the time required may vary from case to case.

3.7 Can the applicant seek injunctive relief while the process is ongoing?

We confirm that the court has the power to issue injunctive relief pending enforcement of foreign judgment.

4 Defences

4.1 On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?

The defendant can challenge the conclusiveness of the matter and recognition and enforcement of the foreign judgment on the following grounds:

The judgment was not pronounced by a court of competent jurisdiction;
The judgment was not given on the merits of the case;
The judgment is based on an incorrect view of international law or refusal to recognise the laws of Bangladesh;
The judgment is opposed to natural justice;
The judgment has been obtained by fraud; or
The judgment is founded on a breach of Bangladeshi law.

4.2 What is the limitation period for filing a challenge?

The notice issued by the court following the commencement of the proceedings would normally provide a fixed date by which the challenge must be filed. However, in our experience, local courts are generous in granting extension of time for submitting written statement challenging enforcement. Since it is at the discretion of the court, it is more likely that court will condone any delay in submitting an objection against enforcement action.

4.3 Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?

Enforcement of judgments from reciprocating territories that are executable in Bangladesh as domestic decrees cannot be challenged by an injunction. Enforcement may be challenged, however, by way of an appeal or by an application for stay of execution as laid down under the Code of Civil Procedure or under the existing laws of Bangladesh.

5 Court analysis and decision

5.1 Will the court review service of process in the initial proceedings?

In the process of enforcement of a foreign judgment, assuming that the judgment is given by a court of reciprocating country, the local court will assume that such a judgment is final and conclusive between the parties and is not impeachable either on facts or law or service of process except on limited grounds enunciated under section 13 of the Code. However, if the defendant/respondent can establish that service of process had not been in accordance with the applicable law, the court may refuse to enforce the judgment on the ground of breach of natural justice.

5.2 Will the court review the jurisdiction of the foreign court in the initial proceedings?

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under which they or any of them claim litigation under the same title, except where it has not been pronounced by a court of competent jurisdiction. The court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving lack of jurisdiction.

5.3 Will the court review the foreign judgment for compliance with applicable law and public policy?

A foreign judgment which has become final and conclusive between the parties is not impeachable on either facts or law or service of process, except on limited grounds enunciated under Section 13 of the Code of Civil Procedure. These grounds include a situation where it appears on the facts 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. The other grounds of appeal include where the proceedings in which the judgment was obtained are opposed to natural justice; where the judgment was obtained by fraud; and where the judgment sustains a claim founded on a breach of any law in force in Bangladesh. As such, it appears that the court will review the foreign judgment for compliance with applicable law.

It is an established principle that a court of law in Bangladesh may refuse to enforce a foreign judgment if such enforcement is opposed to public policy

5.4 Will the court review the merits of the foreign judgment?

5.5 How will the court proceed if the foreign judgment conflicts with a previous judgment in relation to the same dispute between the same parties?

The courts in Bangladesh follow the principle of res judicata as defined under Section 11 of the Code of Civil Procedure and thus will not entertain a foreign judgment where there is a conflicting local judgment between the same parties relating to the same issue.

5.6 Are there any other grounds on which the court may refuse to recognise and enforce the foreign judgment?

The judgment was not pronounced by a court of competent jurisdiction;
The judgment was not given on the merits of the case;
The judgment is based on an incorrect view of international law or refusal to recognise the laws of Bangladesh;
The judgment is opposed to natural justice;
The judgment has been obtained by fraud; or
The judgment is founded on a breach of Bangladeshi law.

5.7 Is partial recognition and enforcement possible?

This will depend on the circumstances and facts of each case. There appears to be no express bar to such recognition and enforcement.

5.8 How will the court deal with cost issues (eg, interest, court costs, currency issues)?

The court has discretion to award costs; in the great majority of cases, however, no award as to costs is given.

6 Appeals

6.1 Can decisions in relation to the recognition and enforcement of foreign judgments be appealed?

Where a certified copy of a decree of a superior court 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. The decision can be challenged by way of revision to a higher court.

6.2 Can the applicant seek injunctive relief while the appeal is pending?

If the appeal is filed by the local defendant, in all likelihood, a stay on the enforcement of the judgment would be sought. Since such an order may adversely impact the future enforcement and recovery of money, the applicant will have ample opportunity to seek injunctive relief to protect the interest of the judgment debtor.

7 Enforcing the foreign judgment

7.1 Once a declaration of enforceability has been granted, how can the foreign judgment be enforced?

The foreign judgment may be executed in the same way as a decree passed by the local court (Section 44A of the Code of Civil Procedure). The court may order execution of a decree:

by delivery of any property specifically decreed;
by attachment of sale or by sale without attachment of any property;
by arrest and detention in prison;
by approving a receiver; or
in such other manner as the nature of the relief granted may require.

Further, the executing court may direct the judgement debtor to deposit the decretal amount in the court and subsequently direct remittance to the decree holder (Section 51 of the Code of Civil Procedure).

7.2 Can the foreign judgment be enforced against third parties?

As the principles of agency and alter ego cannot be applied to enforce a foreign judgment against a person other than the named judgment debtor, or a party which has not been represented in the proceedings, enforcement against a third party is highly unlikely under the Code of Civil Procedure. However, if a third party is holding the property owned by the defendant against whom enforcement of judgment is sought, the court may pass an order of attachment and issue mandatory injunction compelling the third party to make the property available for the disposal of the proceeding.

8 Trends and predictions

8.1 How would you describe the current enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Due to increased use of arbitration and other methods of alternative dispute resolutions, fewer requests for enforcement of foreign judgments are now made in the commercial context. In Bangladesh, the enforcement of foreign judgments is rare and foreign parties interested in enforcing a judgment will usually commence litigation in a local court, hence avoiding the need and complexities of having to enforce a foreign judgment. We do not anticipate any imminent changes or developments in the next 12 months.

9 Tips and traps

9.1 What are your top tips for smooth recognition and enforcement of foreign judgments, and what potential sticking points would you highlight?

Attention should be paid to the grounds which may render a foreign judgment inconclusive according to the Code of Civil Procedure. A litigant in a foreign court should endeavour to avoid any potential challenges that may render a foreign judgment eventually unenforceable in Bangladesh.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Bangladesh: Enforcement of Foreign Judgments Comparative Guide