MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
5.2 Enforcement of Foreign Judgments The process for enforcement of a foreign judgment begins with the filing of an adversarial lawsuit against the adverse party in the court of first instance of Monaco. In this way, a final judgment (or a judgment with pro - visional execution, regardless of appeal) is obtained from the Monaco court. A bailiff may then execute the judgment. These may be executed against previously seized assets or any other assets of the debtor. The foreign judgment that has received recognition from the Monaco court may also be enforced. The CDIP stipulates at Articles 13 to 20 that foreign judg - ments are to be enforced unless it is shown that: • the foreign court did not have jurisdiction under Monaco legislation; • the defendant did not have notice and an opportu - nity to defend; • recognition of the foreign judgment would be mani - festly contrary to Monaco public order; • the foreign judgment is contrary to a decision ren - dered between the same parties in the Principality or by a foreign court and recognised in the Princi - pality; and • litigation is pending in Monaco between the same parties and on the same matter in the Principality that was filed first. The Monaco court may not modify the foreign judg - ment. Jurisdiction of the foreign court will be a factor con - sidered by the Monaco court to determine recognition. The foreign court will be considered not to have had jurisdiction when: • the Monaco courts had exclusive jurisdiction; or • the litigation did not have a sufficient nexus with the foreign state, notably when the foreign jurisdic - tion is only based on: (a) the temporary presence of the defendant in the foreign country; or (b) the existence of assets belonging to the de - fendant that are not connected with the litiga - tion; or
(c) the exercise by the defendant of a commercial or professional activity unrelated to the litiga - tion. These provisions do not apply if the defendant has accepted jurisdiction. It is possible for a party to bring an action in Mona - co seeking “non-recognition” of a foreign judgment (Article 13, paragraph 2 of the CDIP), to prevent the enforcement, and even where the foreign plaintiff is not resident in Monaco. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination A defendant in a criminal investigation is entitled not to reply, but a negative inference will be drawn from the non-co-operation, during both the investigation and the trial. 6.2 Undermining the Privilege Over Communications Exempt From Discovery The new CPC provisions allowing for discovery orders have not yet produced published case law. As they may be accompanied by a fine, or an astreinte , they can be expected to give rise to litigation. Banks served with orders to disclose “any accounts” held by a debtor have been known to refuse, citing bank - ing secrecy, but in a recent case, where the debtor’s personal account had been shown to be nearly empty, the court issued such an order, and the bank com - plied. The debtor subsequently brought proceed - ings to quash the order, although the information had allowed the seizure of funds. If a Monaco lawyer or a foreign practitioner were served with an disclosure order ( compulsoire ), the lawyer could refuse to comply citing the rules of professional secrecy and the Article 308 of the Penal Code, making it a criminal offence to breach confidentiality. In criminal cases, the privilege is strongly debated in France and has been raised in Monaco in a recent case in which information was obtained from the phone of a foreign lawyer practising in Monaco. Monaco was sanctioned by the European Court of Human Rights
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