We have created this guide to cover frequently asked questions on how to enforce judgements and arbitration awards in the British Virgin Islands.

Can foreign judgments and arbitration awards be enforced in the BVI?

Foreign judgments and arbitration awards can and are regularly enforced in the BVI. A judgment is defined in s.2 of the Judgments Act 1907 as an order for the payment of money or costs or any other order having the operation of a judgment.

The legislative framework for enforcing foreign judgments in the BVI is enshrined in the Reciprocal Enforcement of Judgments Act 1922 (the 1922 Act) and common law principles.

The 1922 Act provides a mechanism via which judgments from specified jurisdictions can be enforced in the BVI. Common law principles further allow for the enforcement of foreign judgments from jurisdictions which do not have reciprocal enforcement arrangements with the BVI.

The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) provides for enforcing foreign arbitral awards in the BVI. The Arbitration Act 2013 (the Arbitration Act) governs the enforcement of arbitral awards in the BVI.

What are the conditions for registering a judgment or enforcing common law?

For a foreign Judgment to be recognised, the claimant must present a judgment from a foreign court of competent jurisdiction that is final and conclusive on the merits [1]. The Court will not investigate the loss underpinning the judgment nor whether the obligation to pay remains outstanding.

A judgment from a jurisdiction subject to the 1922 Act can be registered in the BVI for enforcement as if it were a BVI judgment. An application for registration of a foreign judgment under the 1922 Act is made according to Part 74 of the Eastern Caribbean Civil Procedure Rules (Revised Edition) 2023 (CPR). The application must be supported by affidavit evidence, including the necessary statements regarding the judgment (such as the amount of interest that has become due), along with a certified copy of the foreign judgment and a certified translation into English if necessary. The foreign judgment is registrable within 12 months of the date of judgment unless the BVI court grants a more extended period because it is convenient to do so.

Judgments from jurisdictions not subject to the 1922 Act cannot be registered. Instead, the judgment creditor must issue a common law claim under Part 8 of the CPR concerning the judgment debt via a claim form and statement of claim. An affidavit must also be included, exhibiting a certified copy of the foreign judgment and, if relevant, a certified English translation. The judgment debtor must then file an acknowledgement of service within 14 days (if served within the jurisdiction) or 28 days (if served outside of the jurisdiction). If the judgment debtor does not acknowledge service, the judgment creditor can apply for a default judgment according to CPR 12.4.

If the judgment debtor does acknowledge service, the judgment creditor will apply for summary judgment based on the doctrine of obligation by action or estoppel. The BVI court will not look again at the merits of the original judgment and will grant judgment as long as the necessary conditions are satisfied. In this regard, the foreign judgment must be for a definite sum of money and be final and conclusive. There are some arguments that the judgment debtor can raise to avoid judgment being granted in the BVI. Still, these are limited and include the absence of due process, public policy reasons, or the fact that the original judgment was obtained by fraud. The fact that except in limited circumstances, the BVI Court will not look again at the merits of the original judgment means that even when enforcement needs to take place by bringing a common law debt claim, it is generally not a lengthy process.

Once a judgment is registered or granted on a common law debt claim, it can be enforced like any other BVI judgment.

[1]Sergey Tartuta v JSC VTB Bank BVIHCMAP2021/0002 (2 June 2021, unreported), at [39]

How are arbitration awards enforced in the BVI?

The Arbitration Act does not distinguish between domestic and foreign arbitral awards; however, there is a distinction between awards made under the New York Convention (Convention awards) and awards not made under the New York Convention (non-Convention awards).

The party benefitting from the award must apply to the BVI court for leave to enforce it under Part X of the Arbitration Act before taking any enforcement action. Once leave has been granted, the award has the same effect as a judgment or order of the BVI court.

New York Convention Awards

According to the New York Convention, an arbitral award can be enforced in the BVI by bringing a claim or applying to the Court for leave to register and enforce the award.

An application for leave is made according to CPR 43.10. The application is made through a notice of application supported by affidavit evidence. The application can be made without notice to the other party to the arbitral award.

Pursuant to CPR 43.10(5), the applicant must:

  • Exhibit to the affidavit the award or a copy of it
  • Give an address for service to the person against whom the applicant seeks to enforce the award
  • If the award is for the payment of money, certify the amount remaining due to the applicant

Section 85 of the Arbitration Act further provides that an application for leave to enforce an arbitral award must include:

  • The duly authenticated original award or a duly certified copy of the original award
  • The original arbitration agreement or a duly certified copy of the arbitration agreement
  • If the award or agreement is in a language other than English, a translation of the award or agreement, as the case may be, is certified by an official or sworn translator or by a diplomatic or consular agent

If leave to enforce is granted, the order must be served on the judgment debtor, who can apply to appeal set aside the decision. If the party against whom enforcement is sought is a foreign defendant, the claim must be served out of the jurisdiction under CPR 7.3(5).

Section 86(1) of the Arbitration Act provides that enforcement of a Convention award may not be refused except in the prescribed circumstances listed in s.86(2), namely:

  • That a party to the arbitration agreement was, under the law applicable to that party, under some incapacity
  • That the arbitration agreement was not valid, (i) under the law to which the parties subjected it, or (ii) if there was no indication of the law to which the arbitration agreement was subjected, under the law of the country where the award was made
  • That the person (i) was not given proper notice of the appointment of the arbitrator or the arbitral proceedings, or (ii) was otherwise unable to present his case
  • Subject to subsection (4), that the award (i) deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or (ii) contains decisions on matters beyond the scope of the submission to arbitration
  • That the composition of the arbitral authority or the arbitral procedure was not following, (i) the agreement of the parties, or (ii) if there was no agreement, the law of the country where the:
    • arbitration took place; or
    • that the award (i) has not yet become binding on the parties, or (ii) has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made

According to s.86(3), enforcement of a Convention award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration under the laws of the Virgin Islands or it would be contrary to public policy to enforce the award.

Once the arbitral award is registered/permission to enforce has been given by the Court, it can be executed as if it were a judgment of the BVI court, using the remedies under CPR 45 (outlined below).

Non-New York Convention Awards

Non-New York Convention awards can only be enforced by applying for leave to execute from the Court. This is done in the same way as above for the New York Convention Awards. The only difference is that the Court has slightly broader powers to refuse leave, as discussed below. The general position is, however, that it is still for the defendant to show that any of the circumstances for refusal of leave exist.

Section 83(1) of the Arbitration Act provides that enforcement of a non-convention award can be refused in identical circumstances as under s.86(2) for Convention awards, with the addition of the following circumstances under s.83(2) (which do not apply for Convention awards):

  • The award is in respect of a matter which is not capable of settlement by arbitration under the laws of the Virgin Islands
  • It would be contrary to public policy to enforce the award, or

For any other reason, the Court considers it appropriate to do so.

How are judgments generally enforced in the BVI?

Once a foreign judgment or arbitration award has been domesticated and has become a BVI judgment, CPR 45 provides for the following methods of enforcement:

  • A charging order under CPR 48
  • A garnishee order under CPR 50
  • A judgment summons under CPR 52
  • An order for the seizure and sale of goods under CPR 46; or
  • An order for the appointment of a receiver under CPR 51

Generally, when people or companies seek to enforce foreign judgments or arbitration awards in the BVI, they have reason to believe that the judgment debtor owns assets in the BVI, usually in the form of shares in a BVI company. Therefore, the most common method of enforcement used when seeking to enforce a foreign judgment is to seek a charging order over the shares in the relevant BVI company owned by the debtor.

This is done by joining the company to the proceedings and seeking a provisional charging order, which can then be converted into a complete one. There is no requirement to serve the application for an interim charging order on the judgment debtor, and the order granting the relief is simply served once it has been made. The judgment debtor will, however, then have the opportunity to object to the provisional charging order being made final. Once a final charging order has been granted, a judgment debtor will usually apply for the appointment of a receiver and an order for sale. The receiver is then often able to vote him or herself on to the board of the company, which forms the judgment debtor's asset and ultimately sells assets.

Would it also be possible to appoint liquidators to enforce foreign judgment or arbitration awards?

If there is a clear judgment for a monetary sum against a BVI company, it is also possible to apply to appoint a liquidator over the company. Generally, a statutory demand will be served on the company first to allow it to pay. Still, if this is not satisfied or set aside, then the judgment creditor can move straight to the appointment of a liquidator. The liquidator will then enter the company to realise assets to pay the debt.

What if there is a risk of dissipation once enforcement proceedings are commenced?

It is common for judgment creditors who may have discovered that the judgment debtor has assets in the BVI to fear that once the enforcement proceedings are brought, the debtor will dissipate assets. For this reason, freezing relief is often granted at the same time as the claim is issued. This means the order granting the freezing injunction can be served simultaneously with the order registering the judgment or award.

If the matter needs to proceed by common law enforcement, then the injunction can also be sought and obtained at the time of filing so that when the claim is served, it is served with the freezing injunction. To get freezing relief, however, it is necessary to have tangible evidence (not simply a suspicion) of a risk of dissipation.

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.