Because the globe is becoming more linked, business dealings and legal conflicts that involve parties from many countries are occurring more often. As a direct result of this, the enforcing of foreign judgments has arisen as a vital problem for the purpose of ensuring that everyone has access to justice and sustaining the rule of law.
In recent years, Bangladesh, which is located in South Asia and has an economy that is expanding, has seen a growth in the number of transactions and conflicts that involve international borders. This blog investigates the difficulties and opportunities associated with implementing foreign judgments in Bangladesh, taking into consideration both the legal structure of the nation and the actual realities that exist there.
Legal Infrastructure to Support the Execution of Foreign Judgments
There is no specific piece of law in Bangladesh that addresses the issue of the execution of foreign judgments. The procedure is instead controlled by the Code of Civil Procedure (CPC), which was established in 1908, as well as the Foreign Judgments (Reciprocal Enforcement) Act, which was passed in 1933.
In accordance with these regulations, a decree or judgment that was acquired in a different nation may be recognized and put into effect in Bangladesh provided that certain circumstances are satisfied. The entry of a new lawsuit or the commencement of execution procedures are both valid options for achieving the goals of recognizing and enforcing judgments issued in another country.
In the first scenario, the party holding the judgment is the one who is required to initiate legal proceedings in a Bangladeshi court in order to seek recognition and execution of the foreign decision. In the second scenario, the party that has the judgment has the authority to immediately begin the process of putting the foreign decision into effect, supposing that all of the requirements for enforcement have been satisfied.
A corresponding agreement with the state in question is essential before a foreign decision may be legally enforced in that country. An agreement between two or more states for the coordinated or mutual enforcement or administration of laws or any judgment is referred to as a “reciprocal agreement,” while “reciprocity” is another term for this kind of arrangement.
As a result, Bangladesh has reached this agreement with a large number of nations. Any subject that is directly adjudicated upon by a foreign decision between the same parties or between parties under whom they or any of them claim action under the same title is considered to be resolved, unless the judgment in question has not been spoken by a court that has the authority to do so in the country in question.
Under section 13 of the Code of Civil Procedure of 1908, which provides that certain exceptions are allowed where there is insufficient evidence to support a decision or when the judgment is not relevant,
In the event that it has not been decided by a court with the appropriate authority
In the event that it seems, on the face of the proceedings, to be premised on an inaccurate view of international law or a reluctance to recognize the law of Bangladesh in situations in which such law is relevant, or in the event that it appears, on the face of the proceedings, to be founded on an improper view of Bangladeshi law, then the
In the event that the processes through which the verdict was acquired violate the principles of natural justice, or It was gained by deception or illegal means.if it upholds a claim that is based on a violation of any legislation that is now in effect in Bangladesh.
It is important to highlight that in order to enforce the foreign decision, the party in question is need to comply with a number of additional conditions.
That is what:
To begin, the party is required to file an action in accordance with the subject matter in the court that has jurisdiction over district judges in order to have the foreign judgment executed. According to Article 117 of the Schedule to the Limitation Act of 1908, the time restriction for making such an application for the execution of a foreign judgment is six years from the date on which the judgment was pronounced. This fact has to be brought to your attention.
Second, in order to support an application for recognition and execution of a foreign judgment, the party is required to present a copy of the judgment that has been officially certified. In terms of court costs, that amount will be determined by the monetary worth of the litigation as well as the nature of the dispute that is being litigated.
After that, the court will examine the judgment to see whether or not it satisfies any of the prerequisites outlined in Section 13 of the Code of Civil Procedure, 1908. If it does not, the court will then go on with the execution.
According to section 2(6) of the Code of Civil Procedure, 1908, “foreign judgment” denotes the judgment of a foreign court, and section 14 indicates that it would suppose that such a foreign decision was delivered by a Court of Competent Jurisdiction. In terms of whether or not the foreign judgment is final, this information may be found by looking at section 2(6). Therefore, it is possible to argue that the foreign decision is conclusive or final in Bangladesh in the same way that the judgment passed by a competent court in Bangladesh is final in the same way as the judgment passed on its merit by the foreign court.
The process by which such a foreign decision is enforced now raises several difficulties, which we will now discuss. It is important to note that the procedure is the same as requesting a suit to be continued in court, with a few notable exceptions. For instance, a party has the ability to file an injunction request, but only on the judgment’s execution. In addition, the defendant may submit a request for modification but may not appeal the decision.
The Terms and Conditions of Enforcement of Foreign Judgments law
Certain requirements need to be satisfied before a foreign decision may be recognized as legally binding in Bangladesh. These criteria consist of the following:
The decision must be final and cannot be appealed or reviewed in the foreign jurisdiction. The foreign judgment should have been given by a court of competent jurisdiction, and it should not be open to appeal or review in the foreign jurisdiction.
The decision must be based on the merits of the case The decision made in the foreign country must be based on the substantive merits of the case and not on procedural grounds.
The foreign court must have had jurisdiction, and this must be determined in accordance with the principles of international jurisdiction that are acknowledged by Bangladesh.
The verdict must not run counter to the public policy of Bangladesh, or else the country would refuse to implement the foreign ruling on the grounds that it violates its own public policy.
The Obstacles Faced When Enforcing Foreign Judgments law
In Bangladesh, there are various obstacles to overcome in order to put foreign decisions into effect, notwithstanding the legal structure that is already in existence.
These difficulties include the following:
Inadequate legal framework and a lack of clarity: The legal framework that is currently in place in Bangladesh for the implementation of foreign judgments is out of date and does not provide clarity. The Foreign Judgments (Reciprocal Enforcement) Act, 1933 does not include non-reciprocating nations, hence this leaves a vacuum in the process for enforcing foreign judgments.
Difficulties in practice It is common for delays: excessive bureaucratic red tape, and corrupt practices to arise during the actual execution of the enforcement procedure. These characteristics make it more difficult to execute foreign decisions in a timely and effective manner.
Lack of Specialized Courts: Bangladesh does not have any courts or tribunals that are specifically designated to handle issues relating to the execution of foreign judgments since the country does not have any specialized courts. Because of this, the process of enforcing the law may become inconsistent and subject to delays.
Inadequate legal awareness: Many people and companies in Bangladesh are uninformed of the legal processes and requirements for implementing foreign judgments. This is due to inadequate legal knowledge. This lack of understanding is likely a contributing factor in the very small number of petitions submitted for the recognition and enforcement of foreign judgments.
Opportunities for Making Progress of Foreign Judgments law
There are opportunities for improvement in the process of foreign judgments being enforced in Bangladesh, notwithstanding the difficulties that exist. The following are some examples of possible actions that might be taken:
In order to remedy the inadequacies in the laws that are already in place, Bangladesh has to give serious consideration to modernizing its legal structure. Clarity and efficiency would be improved by passing comprehensive legislation that particularly addresses the execution of foreign judgments and includes measures for nations that do not reciprocate with the United States.
Establishing dedicated courts or tribunals to handle issues relating to the execution of foreign judgments will assure specialized knowledge and accelerate the settlement of such problems. Such courts and tribunals might be established by establishing specialized courts.
Strengthening the ability of judicial officials and legal experts in managing international issues and enforcing foreign decisions will increase efficiency and competency in handling such problems. Training would also be beneficial in this regard.
International collaboration: In the process of recognizing and enforcing foreign judgments, Bangladesh should make international cooperation a priority and work to improve both bilateral and multilateral cooperation. It would be easier to execute judgments against each other if nations cooperated with one another in the form of mutual cooperation agreements.
The final word
It is essential that foreign decisions be upheld in Bangladesh in order to facilitate international business and investment and to guarantee that individuals have access to justice. In spite of the obstacles, there is reason to be optimistic about the chances for progress.
It is possible for Bangladesh to overcome the challenges and develop a system that is both effective and efficient for the enforcement of foreign decisions by revising the legal framework, creating specialized courts, increasing legal knowledge, and giving priority to international collaboration.
This will not only safeguard the rights and interests of persons and enterprises engaged in cross-border conflicts, but it will also strengthen the image of the country as an investment-friendly nation. This is because of the twofold effect that this will have.