MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
5. Enforcement 5.1 Methods of Enforcement
the first auction within eight working days, after which a second auction may be held. Contractual clauses that allow creditors to take ownership of real or personal property in loan documents in the event of default are null and have no effect in Monaco. 5.2 Enforcement of Foreign Judgments The process for enforcement of a foreign judg - ment begins with the filing of an adversarial law - suit against the adverse party in the court of first instance of Monaco. In this way, a final judgment (or a judgment with provisional execution, regardless of appeal) is obtained from the Monaco court. A bailiff may then execute the judgment. These may be exe - cuted against previously seized assets or any other assets of the debtor. The foreign judgment that has received rec - ognition from the Monaco court may also be enforced. The CDIP stipulates at Articles 13 to 20 that foreign judgments 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 opportunity to defend; • recognition of the foreign judgment would be manifestly contrary to Monaco public order; • the foreign judgment is contrary to a decision rendered between the same parties in the Principality or by a foreign court and recog - nised in the Principality; and • litigation is pending in Monaco between the same parties and on the same matter in the Principality that was filed first.
Monaco judgments are enforced by bailiffs ( huis- siers ). There are three bailiffs in Monaco. It is an office held by appointment of the Prince. Only bailiffs may serve process in Monaco, and only bailiffs may execute judgments against the assets of a defendant ordered by a judgment of the Monaco courts to pay a money judgment. Enforcement can be made by executing on bank accounts belonging to the debtor. The procedural requirements for a judgment to be enforceable in Monaco are set out at Articles 470 et seq of the Monaco Code of Civil Proce - dure. The judgment must first be formally noti - fied (by a bailiff or through the prosecutor’s office if the party is not in Monaco). Unless the judg - ment states that it can be provisionally executed, an appeal suspends the execution. For real and personal property including furni - ture and automobiles, a sale at public auction is required. For real property, conventional mortgages will grant the lender a right to initiate a judicial sale process on default, without having to obtain a judgment on the debt. The judicial sale begins with the notification of “commandment to pay” served on the debtor and published in the reg - istry of deeds. Once published, the “command- ment” makes it impossible for the debtor to oth - erwise dispose of the property. Judicial sales of real property take place in court, in the presence of a bailiff, and following publicity for the sale to attract as many bidders as possible. The timelines and procedures are very strictly followed. There is a right to overbid
275 CHAMBERS.COM
Powered by FlippingBook