To give confidence to the investors and invite interest in the country’s economy, states not only conclude free trade agreements or such other bi-lateral or multi-lateral arrangements to incentivize businesses and encourage cross-border transactions but also provide comfort to the foreign individual or entity by entering into cooperation agreements to allow enforcement of judgments pronounced by a court of foreign jurisdiction. In line with this global practice, not only does the Omani law provide a mechanism for enforcing judgments pronounced by competent courts of foreign jurisdiction but the Omani government is also a party to regional cooperation agreements to facilitate judicial cooperation.

Legal Regime Applicable to Enforcement of Foreign Judgments:

The Oman Civil and Commercial Procedures Law, as amended (Royal decree No. 29 of 2002) (“Procedural Law”) provides that judgments rendered by competent courts of foreign jurisdiction may be enforced in Oman either on the basis of reciprocity (Article 352; Procedural Law) or pursuant to an agreement between Oman and the concerned foreign country pertaining to enforcement of judgments (Article 355; Procedural Law).

Apart from the Procedural Law, Oman has also ratified; Convention on the Enforcement of Court Judgements, Letters of Rogatory and Judicial Notices in the Gulf Cooperation Council Arab countries (ratified by Oman vide Royal Decree 17/1996) (“GCC Convention”) and Riyadh Arab Agreement for Judicial Cooperation (ratified by Oman vide Royal Decree 34/1999) (“Riyadh Convention”).

For the purposes of this note, GCC Convention and the Riyadh Convention are collectively referred to as the (“Conventions”)).

Enforcement Under Procedural Law:

Article 352 of the Procedural Law provides that a foreign judgment will be enforced under the same conditions as prescribed in the law of the foreign country for the enforcement of judgments rendered by Omani courts upon satisfaction of the following conditions:

• Judgement is rendered by a competent court, in accordance with rules of judicial international jurisdiction, and that said judgment has attained finality;
• Parties were properly represented during the proceedings;
• Judgment or order does not include a claim based on the violation of one of the laws in force in Oman;
• Judgment is not in contradiction with a previous order given by an Omani court; and
• Enforceability of judgments pronounced by Omani courts in the state whose court passed the judgment to be enforced.

In a case that considered the enforceability of a foreign judgment issued from a German Court, the Supreme Court of Oman held in Objection No. 176/2005 that German procedural law calls for a comprehensive review of the foreign court’s jurisdiction under German law whereas under Article 352(2)(1) of Procedural Law, only international jurisdiction of foreign court has to be established. The court found that this constituted a material difference and, therefore, held that the reciprocity did not exist.

In the said precedent, the Supreme Court also held that a foreign judgment may be enforced in Oman if it meets the requirements and conditions laid down in Article (352) of the Procedural Law without the need for a special convention. However, if there is a convention then the said convention should be applied without the need to examine the judgment.

Enforcement Under GCC Convention and Riyadh Convention:

Primary requirement for enforcing a judgment pursuant to the terms of the Conventions is that a final judgment must have been rendered by a competent court of a member state. One striking feature of the Conventions is that neither of the two Conventions allow re-examination of the subject matter of the judgment by the court of the requested party and, therefore, the role of the court of the requested party is restricted to ensuring compliance of the judgment sought to be enforced with the terms of the Conventions.

However, in terms of Article 2 of the GCC Convention, judgments rendered in the following instances would not be enforceable:

• Judgment contrary to Islamic Sharia, provisions of the Omani Constitution, Oman’s public order.
• Judgment rendered in absence of judgment debtor, where the judgment debtor was not properly summoned.
• Judgment rendered in a matter which has attained the status of res judicata in Oman;
• Judgment rendered in respect of a dispute which is pending before the Court in Oman;
• Judgment rendered in violation of the international conventions and agreement in force in Oman.

Similar to the conditions laid down in GCC Convention, Article 30 of the Riyadh Convention provides that a judgment shall not be recognized if:

• Judgment contrary to Islamic Sharia, provisions of the Omani Constitution, Oman’s public order, or the rules of conduct;
• Judgment rendered in absence of judgment debtor, where the judgment debtor was not properly summoned;
• Judgment rendered in a matter which has attained the status of res judicata in Oman;
• Judgment rendered in respect of a dispute which is pending before the Court in Oman;
• Law of the requested party applicable to legal representation of ineligible persons or persons of diminished eligibility were not taken into consideration.

Procedure of Recognition and Enforcement:

Enforcing a foreign judgment is a two-stage process. In the first stage, memorandum of claim will be filed before the primary court of the jurisdiction where the enforcement is sought supported by an authenticated copy of the judgment sought to be enforced along with Arabic translation where the judgment is rendered in a different language. Once the judgment has been recognized, the second step would be to open an execution file.

It is pertinent to note that neither the Procedural Law nor the Conventions distinguish between on-shore and off-shore courts and, hence, the judgments issued by off-shore courts or special courts, such as ADGM Court, should be enforceable in the same way as a judgment issued by an on-shore court so long as the off-shore courts or special courts are treated as courts of the requesting state under the respective law.

Recommendation:

We would strongly recommend entities entering into cross-border transactions to take legal advice on the enforcement of judgments and securities in foreign jurisdictions to ensure that their claims would stand realized should things go south.