European Enforcement Orders - Background

Background

As part of the implementation of International legal conventions, European Union legislation, or internal legislation concerning the recognition of enforceable obligations from other legal jurisdictions, a registration officer working in CAJR might:

register for execution a foreign judgment, authentic instrument or court settlement, for the purposes of the enforcement of that foreign judgment etc, where it has been recognised by a Scottish court (See for example Rules of the Court of Session 62.30 and 62.32), or
prepare and issue a certificate or certificates of enforceability of a document registered for execution in the Register of Deeds and Probative Writs in the Books of Council and Session, or
more rarely, prepare and issue a certificate or certificates of enforceability relating to a court settlement.

This guidance focuses on the issuing of certificates of enforceability and in particular with those issued under Rules of the Court of Session 62.40, 62.41 and 62.84.

Useful links

Process steps; RCS 62.41 Issuing Certificates of Enforceability
Process steps; RCS 62.41B Issuing Certificates of Enforceability
Process steps; RCS 62.88 Registration of Enforcement
Civil Jurisdiction and Judgments Act 1982 (External link)
Court of Session Rules Scottish Courts and Tribunals website (External link)

Purpose of certificates of enforceability

The purpose of these certificates is to allow a creditor to enforce the terms of an agreement or court settlement as against a debtor who has assets situated in another country using the methods of diligence available in that country.

Sometimes the certificate together with the registered document embodying the agreement must be presented to a court in the foreign state for that court to officially "recognise" it, and usually the court is not permitted to review the substance of the claim. In the case of the European Enforcement certificate, the aim is for the certificate to be presented to enforcement authorities in the foreign state to allow the forms of diligence available in that state to be executed, and no intervention by the foreign state's courts is permissible.

Definitions

"Affidavit" means a statement of evidence written in the first person, sworn and signed by the person giving it before a person who may competently take oaths; in Scotland this will include a notary public, a justice of the peace, sheriff or judge. The person before whom the statement is sworn must also sign the affidavit.

"Authentic instrument" means, in the context of this guidance, documents registered for execution in the Books of Council and Session, although as used in the Treaties and Regulations to which this guidance refers, the definition also includes documents authenticated by a foreign notary or other foreign public officer.

"Court settlement" means, in the context of this guidance, an agreement between the parties to a court action which has been approved by a court during the course of proceedings.

"RCS" means Rule of the Court of Session, as currently set out under the Act of Sederunt (Rules of the Court of Session 1994) as amended.

Other general information

Since each of the Rules of Court is drafted with slightly differing requirements, the guidance provided on each type of certificate is largely self-contained; the arrangements for authentication and fees are set out in Parts 5 and 6 respectively. Links are provided where appropriate to definitions and to sample style certificates in the annexes.