Francisco Leitão, Partner, MdME
Michelle Sio, Trainee Lawyer, MdME
Introduction
Under the “One Country, Two Systems” principle, the Macau SAR exercises a high degree of autonomy in accordance with the provisions of the Basic Law, and enjoys executive, legislative and independent judicial power, including the exercise of final adjudication. In that context, decisions handed down by courts or arbitrators outside Macau must be recognized by the Macau Courts before they can be enforced in Macau. In this article, we will focus on the recognition and enforcement of foreign judgments on private rights, as the most frequent case in Macau.
Judgment on Private Rights
A judgment on private rights is one that deals with a dispute derived from a private legal relationship, within which each subject is a private (natural or legal) person, or one of the subjects is a public entity that does not exercise public or preponderant power in the legal relationship, and each subject is in a position of equality or reciprocity.
Decisions of legal disputes in the field of civil and commercial matters and decisions awarding civil damages in criminal cases fall within the scope of judgments on private rights.
Function
By undergoing recognition proceedings, the parties involved in a private judgment delivered in a foreign jurisdiction can benefit from the authority of that judgment to make their rights effective in Macau. The proceedings are aimed at ensuring that the foreign private judgment to be recognized in Macau complies with the basic principles of the local laws and public order.
Once the judgment is recognized and becomes effective in Macau, the parties can assert their rights, as adjudicated by the foreign court or arbitral tribunal, and the validity of the subject foreign judgment, especially through enforcement proceedings.
Macau’s significant ties with other regional and international economies have led to recognition and enforcement of foreign judgments becoming a relevant part of Macau judicial practice. Moreover, considering that the ongoing implementation of the Guangdong-Hong Kong-Macau Greater Bay Area is continuously promoting the economic development of the three regions, we believe that recognition and enforcement of civil and commercial foreign decisions in the Macau jurisdiction will become even more frequent in years to come.
Competent Court
The competent Macau court for processing the recognition of foreign judgments is the Second Instance Court, whereas the competent court for the enforcement of the recognized judgment is the Judicial Base Court.
Recognition Requirements
In order to be recognized by the Second Instance Court, the relevant foreign judgment must meet the following requirements:
- The document containing the judgment must not raise any doubts as to its authenticity nor to the intelligibility of the decision to be recognized;
- The judgment must have res iudicata effect (i.e., it should no longer be subject to ordinary appeal) pursuant to the laws of the originating jurisdiction;
- The jurisdiction of the court that delivered the judgment must not have been fraudulently established, namely by intentionally creating or changing nationality, domicile or place of conduct, in order to circumvent rules of jurisdiction that would otherwise apply;
- The judgment must not deal with matters within the exclusive jurisdiction of the Macau Courts, namely actions relating to immovable property located in Macau or aimed at declaring bankruptcy or insolvency of a legal person registered in Macau;
- There must be no identical action pending before the Macau Courts nor any prior judgment by the Macau courts in respect of the same matter, except when the relevant Macau legal action was initiated after the originating foreign proceedings;
- The defendant must have been duly summoned to the action in accordance with the law of the originating jurisdiction, and the principles of adversarial discussion and equality of the parties must have been observed in the foreign proceedings;
- The judgment must not contain a decision that, if confirmed, would lead to a result that is clearly incompatible with the Macau public order.
Proceedings
The respondent is allowed to raise opposition against the recognition application, and the Public Prosecutor with the Second Instance Court will opine on the merits and viability of such application, prior to the panel of judges handing down the decision.
Type of Examination
In typical situations, the Court’s examination of foreign judgments with a view to their recognition in Macau will be of purely external and formal nature, rather than material. In other words, the Court will, as mentioned above, verify issues such as potential breach of Macau exclusive jurisdiction or observance of due process by the foreign Court, but will not re-examine the merits of the underlying dispute or hear evidence to that effect. The sole exception in that respect will be judgments that will produce a result deemed incompatible with the public order of Macau, to which the Court will deny recognition ex officio (i.e., even if no challenge has been raised by the respondent).
However, when the judgment to be recognized was delivered against a Macau resident and is challenged by the respondent, the Second Instance Court will conduct a substantive examination of the contents of the judgment. In this case, the Court will first assess whether (i) the matter at stake should, under Macau rules of conflicts, have been subject to Macau substantive laws and (ii) the application of such Macau laws would have produced a more favorable result for the affected Macau resident, in which case recognition of the foreign judgment will be rejected.
Appeal
The Second Instance Court’s decision granting or rejecting recognition of a foreign judgment is subject to appeal to the Last Instance Court.
Enforcement
Once a foreign judgment has been recognized pursuant to the above procedure, it will become enforceable before the Judicial Base Court in Macau under the same terms as a judgment handed down by the Macau Courts. The enforcement will take the form of summary proceedings, same as for local judgments, and will comprise coercive measures aimed at satisfying the creditor’s rights as per the terms of the judgment. This can include seizure of assets and monies, garnishing of incomes or other credits, forceful surrender of assets or property, judicial sale of assets and payment out of the proceeds of sale.
