Guernsey

Foreign judgments may be enforced in Guernsey by two principal routes:

The statutory regime

The Judgments (Reciprocal Enforcement) (Guernsey) Law 1957 (“the 1957 Law”) provides a statutory mechanism for enforcing certain foreign judgments in Guernsey but does not extend to the other islands of the Bailiwick (Alderney, Sark, Herm, Breqhou and Jethou).

The Judgments (Reciprocal Enforcement) Ordinance 1973 identifies the countries whose courts are covered by the 1957 Law, and the Judgments (Reciprocal Enforcement) (Guernsey) Rules 1972 (as amended) set out procedural requirements for registration and enforcement.

The 1957 Law is limited to judgments from the superior courts of designated countries, with reciprocal arrangements currently in place with England, Scotland, Northern Ireland, the Isle of Man, Jersey, Italy, the Netherlands, Surinam and Israel. The Netherlands Antilles entered into a reciprocal enforcement treaty, but since it was dissolved in 2010, it is doubtful that the treaty remains enforceable.

Notably, following the Royal Court’s 2009 decision in LLP v. Interglobal Financial Limited, an English county court judgment transferred to the High Court for enforcement purposes qualifies under the regime. Judgments meeting these criteria are directly enforceable in Guernsey, subject to certain statutory defences.

The common law

In all other cases and throughout the wider Bailiwick, enforcement is governed by the common law, under which both recognition and enforcement follow established principles. At common law, the foreign judgment is not directly enforceable. Instead, it creates an obligation as a debt, and the creditor must sue afresh in the Royal Court of Guernsey, the Court of Alderney, or the Court of the Seneschal of Sark, based on that obligation. The summary judgment procedure is typically available for such actions.

What are the main international treaties or conventions that apply?

Guernsey is not a signatory to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. Nor is Guernsey a signatory to the Brussels or Lugano Conventions. Guernsey is party to the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 1965 (“the Hague Service Convention”).

What legal principles apply if there is no applicable international treaty or convention?

When a foreign court judgment cannot be enforced under international or Guernsey statute because the judgment originates from a non-reciprocating jurisdiction (such as the United States) or does not satisfy statutory requirements, the only available route in Guernsey is to proceed via the common law. In such cases, the judgment creditor cannot simply register the judgment but must instead bring fresh proceedings in the Royal Court of Guernsey, the Court of Alderney, or the Court of the Seneschal of Sark. In these proceedings, the foreign judgment is treated as giving rise to a debt owed by the judgment debtor to the creditor, and the cause of action is the defendant’s implied obligation to pay to the plaintiff the amount required by the foreign judgment. The creditor typically issues what is, in effect, a debt claim (a “Cause”), relying on the foreign judgment as proof of indebtedness, and may be able to seek summary judgment if there is no substantial dispute.

To be enforceable under common law, certain substantive requirements must be met. First and foremost, the foreign court must have exercised “competent jurisdiction” as that concept is understood under Guernsey law. For example, jurisdiction might be accepted if the defendant was resident in the foreign country when the claim was begun, or if the defendant voluntarily submitted to the foreign court’s jurisdiction or otherwise consented (such as by appearing and pleading to the merits, or contractually agreeing that the foreign court would have jurisdiction). The standards applied are those of Guernsey law, not those of the foreign state.

Additionally, the foreign judgment must be “final and conclusive”. This means that the judgment must be res judicata in the country in which it was pronounced. It cannot be subject to further proceedings in the original court and should not be interlocutory or provisional in nature. Practically, Guernsey courts may still recognise a judgment as final notwithstanding that an appeal is pending, provided that enforcement has not been expressly stayed in the foreign jurisdiction.

Furthermore, recognition and enforcement will only be granted for judgments requiring payment of a definite sum of money. Judgments for taxes, fines, penalties or non-monetary relief (such as injunctions or declarations) do not fall within the scope of Guernsey’s common law enforcement rules. The judgment must also be certain in amount — if the sum is not clearly ascertainable, the judgment will not be eligible for enforcement.

Jurisdiction

Both the 1957 Law and the Guernsey common law regime require that the foreign court which issued the judgment exercised jurisdiction in a manner recognised by Guernsey’s own private international law rules. It is not enough that the foreign court considered itself to have jurisdiction. Guernsey’s courts will apply their own standards of jurisdiction when determining whether the foreign judgment is capable of recognition or enforcement. Enforceability will be denied in the Royal Court if the defendant can show that the foreign court lacked competent jurisdiction as recognised by Guernsey conflict rules, or that the judgment was obtained by fraud.

Jurisdiction will usually be accepted if, at the time the foreign proceedings commenced, the defendant:

• was resident or present in the country of the original court;
• voluntarily submitted (e.g. by appearing in the proceedings and contesting the merits);
• brought a counterclaim; or
• expressly agreed in advance that the foreign court would resolve disputes.

The Guernsey court may also recognise jurisdiction if the dispute was linked to a place of business or an office in the foreign jurisdiction where the relevant transaction occurred.

Service of proceedings on the defendant

Enforcement will also be refused if giving effect to the judgment would be contrary to Guernsey public policy, or if it would offend basic principles of natural justice such as proper notice or an opportunity to be heard. For example, a key defence under the 1957 Law is if the defendant did not receive sufficient notice of the original proceedings and did not appear as a result, the court will not enter judgment against them. Even if the foreign court’s procedural requirements for service were satisfied, a Guernsey court will set aside registration if, as a matter of substance, the defendant was not given a fair opportunity to defend and did not take part in the case. Mere technical or formal service will not override this right. Importantly, if the defendant participated or submitted to the foreign proceedings, or was otherwise on actual notice, this argument does not prevent recognition.

Time limits and finality

The Guernsey court will also not enforce if the judgment has already been fully satisfied, or if it is time-barred under Guernsey law. To register a judgment under the statutory regime, the judgment creditor must apply within six years from the date the foreign judgment was issued. If enforcement is sought at common law by suing on the judgment as a debt, the ordinary prescription period for debt claims also applies, which is typically six years from the date the foreign judgment was entered. If this time limit has expired before registration or proceedings are brought, enforcement typically will not be possible, although Guernsey does recognise certain prescription defences. The judgment creditor must also demonstrate that the foreign judgment is still enforceable in the jurisdiction of origin at the time enforcement is sought in Guernsey — a point that may require reference to foreign law evidence.

In line with the general approach in the Channel Islands, the Royal Court does not act as a court of appeal on the merits of the foreign decision. The Guernsey court will not revisit findings of fact or law made by the foreign court, nor will it permit the debtor to raise merits-based defences which were or could have been argued before the original foreign tribunal.

Guernsey law further insists that the foreign judgment be final and conclusive, and that it orders payment of a definite sum of money (other than taxes, fines, or penalties). Recognition and enforcement are specifically excluded for judgments which are not final, or are not for a certain sum, as well as for those which have already been satisfied, or where enforcement would be contrary to Guernsey’s public policy, were fraudulently obtained, or were obtained in proceedings that ran contrary to basic principles of natural justice. The Royal Court will not revisit or re-examine the facts of legal conclusions arrived at by the foreign court, nor allow a party to re-argue issues or defences which were, or could have been, advanced before the foreign court. Instead, only limited and well-recognised defences, such as lack of jurisdiction, fraud, public policy, being contrary to natural justice or prior satisfaction, or time bar, are available in proceedings to resist enforcement.

Key point

Once a foreign judgment is either registered (in the case of a reciprocating country under the 1957 Law) or is the subject of a local judgment following a common law debt action, that judgment is enforceable in Guernsey just as if it had been handed down originally by the Royal Court, using the full range of local enforcement mechanisms, such as arrest of assets, or a structured proceedings called “saisie” for real property (see Question 8, below).

Legal principles

The recognition and enforcement of foreign arbitral awards in Guernsey are governed primarily by the Arbitration (Guernsey) Law, 2016 (“the 2016 Law”). This legislation implements, within Guernsey, the regime established by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. As such, it creates a straightforward and pro-enforcement legal structure for arbitral awards made in any state that is a party to the New York Convention, provided the award results from a written arbitration agreement. In practice, this means that most modern international arbitration awards will fall under the 2016 Law.

However, not all foreign awards will qualify under the 2016 Law. For example, “non-convention” awards, those arising under agreements or in territories not covered by the New York Convention, may instead need to be enforced under the older Arbitration (Guernsey) Law, 1982 (“the 1982 Law”). This 1982 Law gives effect in Guernsey to foreign awards within the meaning of the Geneva Convention and certain related instruments that predate the New York Convention. Although superseded in most respects, the 1982 Law remains relevant in such cases.

Process

The process of enforcing a foreign arbitral award in Guernsey involves making an application to the Royal Court. The applicant must supply the court with either the original arbitral award or a certified copy of it, as well as the original arbitration agreement (or a certified copy). If either document is not in English, a certified translation must also be provided. This translation must be issued by an official or sworn translator, consular authority, or similar. The application is typically made on an ex parte basis, meaning without notice to the judgment debtor at the time of filing (but the court may subsequently require notice to be served or other safeguards to be implemented).

If the court is satisfied with the documentation and that all requirements are met, it will grant leave to enforce the award. Once leave is granted and the debtor has had the chance to object or set aside, the foreign arbitral award is treated in all respects as if it were a Royal Court judgment, accessible to the full suite of local enforcement remedies.

Defences to enforcement

Although Guernsey law is generally supportive of arbitral awards, there are specific grounds on which recognition and enforcement of a foreign arbitral award may be refused by the Royal Court.

If the arbitration agreement underlying the award was not valid under the law to which the parties agreed, or, in the absence of agreement, under the law of the seat of arbitration, enforcement may be denied. Similarly, if one of the parties to the arbitration was under some legal incapacity or did not receive proper notice of appointment of the arbitrator or of the arbitral proceedings, or otherwise was unable to present their case, the Royal Court may refuse recognition to enforcement.

Awards will not be enforced to the extent they deal with issues outside the scope of the arbitration agreement (i.e. the tribunal had no proper jurisdiction over certain disputes).

If the foreign arbitral award has been set aside or suspended by a court with competent authority at the seat of arbitration, the Royal Court will not enforce the award.

Also, the Guernsey Royal Court will not enforce an award if to do so would be contrary to Guernsey’s public policy. Public policy is interpreted narrowly in this context and reflects substantial injustice or matters that fundamentally offend the island’s legal values.

Under the 1982 Law (for Geneva Convention cases), further requirements, such as finality, notice, and proper constitution of the tribunal, are explicitly set out as prerequisites for enforcement.

Fees payable

The level of court fees for the enforcement of foreign judgments in Guernsey is not specifically detailed in the Guernsey court fees rules. Fees payable will relate to first tabling of a Cause, service, filing defences and other documents, hearing and trial fees, as well as (most recently relevant) judge reading time.

Process/timeline

Statutory registration (for reciprocating jurisdictions). The process involves an ex parte application to register the foreign judgment, which must be supported by an affidavit and a certified copy of the judgment. Once registered, there is a statutory period during which the judgment debtor can apply to have the registration set aside.

Common law enforcement. This requires commencing a new action in the Royal Court of Guernsey on the debt represented by the foreign judgment, typically accompanied by an application for summary judgment.

Timeline. If the debtor does not contest the proceedings, enforcement can be relatively swift, potentially completed within weeks to months. Guernsey hearing allocations are generally quick, and judge/courtroom availability is good, bar exceptional periods where large trials are listed. If the debtor contests the enforcement or raises factual disputes, the process may take longer.

Responsible court

The enforcement of foreign judgments is undertaken by the Royal Court of Guernsey, usually sitting as the Ordinary Court. Appeals from this court’s decisions in judgment enforcement matters proceed to the Guernsey Court of Appeal and may be appealed further (with permission) to the Privy Council. Appeals from the Court of Alderney or the Seneschal of Sark would be to the Royal Court in the first instance, sitting as the Court of Appeal.

Appeals in commercial disputes, including enforcement cases, are subject to the general rules for appeal in Guernsey.

Appeals in the enforcement of foreign judgments and arbitral awards in Guernsey

Any party affected by a decision concerning the registration, recognition, or enforcement of a foreign judgment or arbitral award is entitled to appeal. The route of appeals proceeds initially from the Royal Court of Guernsey to the Guernsey Court of Appeal. Beyond this, a further appeal to the Judicial Committee of the Privy Council is possible, but only with leave from the Court of Appeal or the Privy Council itself. Appeals from Sark and Alderney will be heard by the Royal Court of Guernsey sitting as the Court of Appeal in the first instance.

Grounds

Appeals against first-instance judgments, including those concerning enforcement of foreign judgments, can be made as of right if the appeal is on a point of law. Appeals concerning factual determinations made by Guernsey’s Jurats are also considered by the Court of Appeal. Appeals against interlocutory orders, consent orders, and costs orders, require leave from the trial judge and if refused, from the Court of Appeal. Leave will be refused where there is no realistic prospect of success unless a wider issue of importance needs to be determined by the court.

Timing

A party has 28 days from the date of the final decision to lodge and serve a notice of appeal on all parties. The court may extend this period. For appeals to the Privy Council, an application for leave to appeal must first be made to the Guernsey Court of Appeal. While there is no specified time limit for making this application, the party appealing is expected to do so within a reasonable time. An application for leave to the Privy Council must be filed within 56 days of the decision of the Court of Appeal, or refusal of leave to appeal (if later).

Effect of appeals on enforcement

The mere lodging of an appeal does not automatically stay enforcement of the judgment or award. However, the Royal Court may, on application, grant a stay of enforcement if it considers it appropriate, typically pending determination of the appeal. The discretion to grant a stay will be exercised based on the circumstances, including whether there is a serious issue to be tried or irreparable harm might result if enforcement proceeds.

Costs

Costs in Guernsey are not automatic. Costs of appeals will depend on the circumstances of the case, and may be awarded in accordance with the outcome, may be issue-based, or an order for “no costs” may be made.

The investigatory and disclosure powers available in Guernsey are extensive. The Royal Court of Guernsey and HM Sheriff can actively trace and recover assets, using a variety of court orders to obtain information from banks and other third parties, with strong sanctions available to ensure compliance.

Investigatory powers of the court and HM Sheriff

The Royal Court and HM Sheriff have broad powers to investigate the assets of judgment debtors for the purpose of enforcement. A common practice is for HM Sheriff to write directly to banks and other relevant entities to enquire about the judgment debtor’s assets. This process is aimed at identifying the location, nature, and extent of assets that could be subject to enforcement measures in satisfaction of a judgment.

Disclosure orders

Two principal types of court orders can be sought to help locate and recover assets. Both are recognised and commonly used in Guernsey proceedings, particularly in commercial disputes and asset recovery matters.

• Norwich Pharmacal orders. These orders compel third parties (typically banks or service providers) to disclose specific information where they have become mixed up in the wrongdoing, even innocently. Norwich Pharmacal orders are particularly useful in cases involving fraud or asset concealment, allowing the applicant to uncover the identity of parties and trace the flow of funds.
• Bankers Trust orders. These are available in cases involving misappropriation or dissipation of assets. Typically, these orders require banks to disclose documents or information to facilitate the identification and tracing of assets. They are especially valuable in cases of breach of trust or fiduciary duty, and in support of freezing orders.

Sanctions for non-compliance

If a party, including third parties such as banks or service providers, fails to comply with any court order, including investigatory or disclosure orders, they may be subject to sanctions. The principal sanction is contempt of court, which may result in fines, sequestration of assets, or imprisonment in serious cases. Additional penalties may be imposed at the court’s discretion to compel compliance or punish recalcitrance. Orders for contempt of court against a foreign bank or service provider can in practice be difficult to obtain in the Bailiwick of Guernsey or to enforce elsewhere.

A range of interim remedies is available to parties seeking to secure assets or evidence in support of litigation or enforcement in the Royal Court of Guernsey.

Scope and limitations

Interim remedies are available in respect of assets located within the jurisdiction of Guernsey. The court may also grant relief over assets situated outside Guernsey in limited circumstances. Applications for relief typically require detailed evidence and supporting documentation, and the applicant must provide undertakings for damages in case the order is later found to have been wrongly granted.

Freezing orders (Mareva injunctions)

The Guernsey Royal Court can grant freezing orders against a defendant’s assets. These orders, sometimes called Mareva injunctions, are intended to prevent the dissipation of assets so that a judgment, if obtained, can be satisfied. The applicant must satisfy the court that there is a good arguable case, that there is a real risk that the assets may be dissipated, and that it is just and convenient to grant the remedy. The court applies the principles established in American Cyanamid, assessing the balance of convenience and the likelihood of irreparable harm.

Arrêt conservatoire

Guernsey customary law provides for the arrêt conservatoire, an interlocutory execution remedy used to freeze assets. Types of arrêt conservatoire include orders to arrest wages, personalty (movable property), and (rarely) the person. The purpose of this remedy is to secure assets, prevent their removal, improve prospects of recovering a debt, and deter avoidance. While it has historical roots, and modern injunctions are more commonly used, arrêt conservatoire remains an available option.

Search orders

The Bailiwick courts recognise the equivalent of Anton Piller orders, which are search and preservation orders compelling a defendant to admit a court-appointed officer onto premises to search for and seize evidence at risk of destruction. These are drastic measures and only granted in exceptional cases where it is shown there is a strong prima facie case, the evidence is crucial, there is a real possibility that it will be destroyed, and the effect of not granting the order would be serious.

Bank accounts

Once a foreign judgment or arbitral award has been recognised and registered, the judgment creditor may apply to the Royal Court for an order to attach funds held in bank accounts belonging to the judgment debtor. HM Sheriff, who is responsible for executing judgments, can write to banks in Guernsey to identify accounts and the sums held. The court may then issue an arrêt order, freezing the amounts until enforcement is completed. In certain circumstances, the bank will be directed to release funds to satisfy the judgment debt. Failure by the bank or debtor to comply may result in contempt of court sanctions.

Shares

Enforcement against shares held by a judgment debtor in a Guernsey company generally proceeds by identifying and freezing such shares, often via disclosure orders or Swiss-style freezing orders. The shares may then be seized and transferred to the creditor, or sold, under a court order following saisie proceedings (the Guernsey process for vesting real or personal property in a creditor). The process is overseen by HM Sheriff in execution of the judgment. Additional remedies may include equitable receivership over shareholdings or enforcement by appointment of a liquidator if the debtor is a company.

Debts due to the judgment debtor from third parties

The Royal Court can issue an arrêt order “arresting” or attaching debts owed to the judgment debtor by third parties. This includes receivables, contractual payments, or loan repayments. The third party may be ordered to pay the amount due directly to the creditor rather than the debtor, up to the amount of the judgment. Disclosure orders, such as Norwich Pharmacal or Bankers Trust orders, may be requested to identify such debts or trace assets flows.

Real estate

Enforcement against real property in Guernsey is carried out through saisie proceedings. After the foreign judgment is recognised, the creditor may commence saisie proceedings to vest ownership of the debtor’s real estate in their favour.

The debtor’s real property is arrested and a call for claims from other creditors against the property is published in the Gazette Officielle. A commissioner is then appointed to assess claims, and after a hearing, a Final Vesting Order (FVO) may be made, transferring the property to a creditor who pays all higher-ranking claims. Importantly, once saisie is commenced against real estate, the creditor loses the right to enforce the debt against any other assets, so it is used when the property will fully satisfy the debt. Saisie is a complex process, used only as a last resort.

Movable property

Enforcement against movable property (such as vehicles, valuable goods or equipment) is typically pursued by HM Sheriff through arrest and subsequent sale of such assets. HM Sheriff identifies and seizes the debtor’s goods and auctions them to realise funds for the satisfaction of the judgment. The Royal Court may make orders for the delivery or sale of specified property. As with other assets, orders freezing or securing movable property (such as arrêt conservatoire) may be obtained to prevent dissipation pending enforcement.

Generally, enforcement of a foreign judgment or arbitral award in Guernsey is only permitted against assets held in the judgment debtor’s legal name. This principle applies equally to trusts established under Guernsey law.

Guernsey discretionary trusts

Most Guernsey trusts are discretionary in nature, meaning that beneficiaries do not have a fixed, enforceable beneficial interest in the assets of the trust. Instead, beneficiaries are considered “mere objects of a power”; they have no legal entitlement to claim against trust assets unless and until the trustees exercise discretion in their favour. Consequently, a creditor or judgment holder cannot directly enforce against the assets of a Guernsey discretionary trust on the basis of a beneficiary’s interest alone.

Exceptions and alternative strategies

There are, however, circumstances in which the Guernsey courts may support enforcement against trust assets:

• Sham, illusory, or fraudulent trusts/transfers. If the creditor can demonstrate (on evidence) that a trust is a sham, meaning it was created for the purpose of hiding assets and is not genuine, or that the trust is illusory (e.g. if the debtor retains effective control over the assets or the a trustee acts solely at the debtor’s direction) or a transfer into trust was fraudulent, the court may disregard the trust structure and allow enforcement against its assets.
• Receivership over powers. The Royal Court may, in certain circumstances, appoint an equitable receiver over any powers reserved to the judgment debtor, such as a power to remove trustees, add or remove beneficiaries, or direct investments. This remedy may be used to obtain control over the trust and, if appropriate, realise assets for satisfaction of the judgment. This approach is fact-specific and usually requires detailed evidence of the debtor’s retained powers or actual control over the trust.
• Tracing and recovery actions. If trust assets have been acquired or transferred out of the debtor’s assets in breach of fiduciary duty or as part of a fraudulent scheme, actions may be possible to set aside the trust or recover trust property via tracing relief.
• Disclosure orders. In appropriate cases, the judgment creditor may apply for disclosure orders (such as Norwich Pharmacal or Bankers Trust) against trustees or other entities to obtain information that might assist in asset tracing and enforcement.

In practice, enforcement against trust assets in Guernsey is complex and heavily dependent on the facts of each case. The courts require compelling evidence before setting aside a trust or granting receivership over powers, and will only do so where justice and equity so require.

Where a judgment debtor owns property jointly with another, enforcement is focused on the debtor’s individual share, rather than the entire asset. Guernsey law provides a mechanism called “licitation” for this purpose.

Licitation is a process available before the Royal Court that enables the public sale of jointly owned property when one co-owner (such as a judgment debtor) is subject to enforcement. Upon a creditor’s application, the court can order that the property be sold by public auction. Licitation is used for both real estate and certain high-value movable assets.

Licitation is typically a remedy of last resort, especially for residential property, due to the impact on all co-owners. The procedure is formal and requires judicial oversight to ensure fairness. The process enables creditors to forcibly convert an abstract fractional interest into actual funds for debt recovery. Licitation is a distinct feature of Guernsey’s enforcement landscape, reflecting local property law and the need to balance creditors’ rights with those of innocent co-owners

The process is that a creditor applies to the Royal Court for an order for licitation. The court determines the proportion of ownership held by the debtor. The property is advertised and sold at public auction under court supervision. After sale, the proceeds are divided amongst the co-owners according to their fractional shares.

The creditor is entitled to recover payment from the debtor’s allotted share, allowing the creditor to realise value even where the debtor’s interest is partial.

Importantly, the interests of non-debtor co-owners are protected. Only the debtor’s share is used to satisfy the judgment, and surplus proceeds are returned to the non-debtor owners.