When a judgment is issued by a commercial court, there is a common misconception that the process has ended.
All too often, however, when enforcement of that order is pursued, the creditor has difficulty collecting what is owed. This may be due to the fact the debtor genuinely has insufficient funds, or in some cases the debtor is reluctant to meet the directions of the order. Either way, it is essential for parties to be proactive about collecting money before, during and after a dispute.
As part of their due diligence, parties should consider having a discussion around where the other side’s assets are located before signing a contract. It will then be much easier to request a freezing order, which prevents the disposal of identified assets, should a dispute then arise.
Freezing orders are advisable at the beginning of proceedings if there are any question marks around the solvency of a party. However, it is the responsibility of the party requesting the freezing order to identify assets. If this information is not forthcoming, in some jurisdictions, a party can be asked under oath to disclose details of their assets, ranging from bank accounts and businesses to properties and cars.
If monies are not paid following a judgment, creditors can request an order for the forced sale of any identified assets. These need not necessarily be confined to the country where the dispute was heard, with international enforcement orders routinely sent between commercial courts. The GCC Convention makes this process particularly efficient within the Gulf, while the DIFC Courts have established bilateral enforcement arrangements with courts in many of the UAE’s key trading partners.
Since their jurisdiction was opened to businesses worldwide in October 2011, the DIFC Courts have established one of the world’s strongest enforcement regimes by signing cooperation agreements with peers including the Commercial Court of England & Wales, the Federal Court of Australia, the Supreme Court of Korea, the Supreme Court of Singapore, the Shanghai High People’s Court, the Federal Court of Malaysia, the Hangzhou Arbitration Commission and the US District Court for the Southern District of New York, among many others.
There are numerous options open to parties to enforce an award, but the process starts with the understanding that a court order is not the same as money in the bank. That is why collecting money should be front of mind at every stage of the dispute resolution process.
|Mark Beer is co-CEO and registrar-general of the DIFC Courts|