MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida and Daniel de Senna Fernandes, Riquito Advogados
9.4 Enforcement Mechanisms of a Domestic Judgment Judgments and orders are enforced by further court procedures and, where necessary, by court officials. There is no procedure for direct enforcement (ie, not involving the court) by the successful party against the counterparty. In the case of non-voluntary compli- ance with an award, the successful party must initi- ate enforcement proceedings, as the court will not enforce a judgment automatically. The nature of enforcement proceedings will vary in accordance with the particulars of the judgment or order to be enforced. Enforcement proceedings will proceed according to the following steps: • submission of claim for enforcement based on court order/judgment; • submission of defence to enforcement proceedings within 20 days; • enforcement through, for example, seizure of assets, rights or entitlements; and • discharge of judgment/order. Depending on the type of order or judgment to be enforced, the main means of enforcement may con- sist of: • seizure and auctioning of assets (the assets can also be sold through negotiation by an expert appointed by the court): if a third party is liable for the debt the court proceedings for the enforcement have to be commenced against that third party; • seizure of earnings; • forced sale; • charging orders; • periodical penalty payments; or • attachment of a third-party debt owed to the debtor (eg, a debtor’s bank account). 9.5 Enforcement of a Judgment From a Foreign Country Unless otherwise provided for in international agree- ments in force in the Macau SAR, judgments and arbitral awards from a foreign country can only be
referred to a later stage, when such losses become determinable). The parties may, however, agree in advance to the amount of compensation to be paid in case of default, delay or defective performance of certain obligations, in which case the compensation to be awarded may be higher or lower than the damages that would result from the application of the principle of adequate cau- sation, unless the court finds them excessive. Furthermore, the successful party may be entitled to further compensation if the counterparty acts in the proceedings in bad faith, which is the case when the unsuccessful party, with fault or gross negligence: • submits a claim or defence being aware of the lack of respective merits; • changes or omits facts relevant for the decision; • commits a serious offence to the obligation to co- operate with the court; or • uses the proceedings or certain procedural mecha- nisms for censurable purposes. Notwithstanding the above, court orders in general, and in indemnity claims in particular, are limited to the request made by the successful party. In other words, they cannot rule in excess of the party’s claim, either in the nature or in the specific amount of damages requested. 9.3 Pre-Judgment and Post-Judgment Interest In respect of pecuniary obligations, interest is due from the day the debtor is considered to be in delay (mora) of the delivery of the obligation. Therefore, if the debtor is considered to have been in delay since before judgment, pre-judgment interest will be avail- able. If the obligation needs to be liquidated by the court, such as in the case of an indemnity claim (where the court has to assess the damages subject to indem- nification pursuant to the principles described in 9.2 Rules Regarding Damages ), interest will only be due post-judgment.
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