With continuing uncertainty in global markets arising from trade tariffs and shifting geopolitics, many businesses are reinforcing their commercial ties with Asia. 

However, cross-border litigation and enforcement present significant challenges. Securing a favourable judgment or arbitral award is only one part of the process; the greater difficulty often lies in enforcement.

Enforceability must therefore never be treated as an afterthought. It should form part of the strategy from the outset. 

Against this backdrop, businesses should bear in mind several key considerations when navigating cross-border enforcement.

Start with enforceable contracts

Cross-border enforcement is rarely straightforward. At the contracting stage, parties should:

• Check recognition: Ensure that judgments or awards are capable of recognition in the counterparty’s jurisdiction.
• Locate assets: Identify where counterparties hold assets and assess whether those assets are accessible.
• Preserve options: Build in interim measures (such as the possibility of freezing orders) to protect assets if disputes arise.
• Act with speed in mind: Anticipate how quickly action can be taken to prevent dissipation of assets.

Even the most carefully drafted contract may not result in recovery unless supported by a robust enforcement strategy.

Acting quickly makes all the difference

When disputes arise, time is often decisive. Delay can erode leverage and allow counterparties to dissipate assets. Practical steps include:

• Asset searches: Conduct worldwide asset searches rather than focusing on one jurisdiction alone.
• Freezing orders: Apply for orders to preserve assets before they can be moved or hidden.
• Settlement leverage: Use legitimate pressure points to encourage debtors to resolve matters swiftly.
• Insolvency strategies: Consider deploying insolvency processes, which can be effective in creating pressure and opening further recovery options

Clients who fail to plan and act decisively risk losing the contest before it has begun.

Anticipate enforcement roadblocks

Even after obtaining a favourable judgment or award, enforcement challenges are common. Parties should:

• Assess early: Test enforceability across borders at the outset, as not all judgments or awards are easily recognised.
• Look beyond ownership: Investigate beneficial ownership structures, as assets may be hidden through nominees or layers of companies.
• Plan for procedures: Prepare for local procedural hurdles, which vary widely and may cause delays.
• Budget realistically: Account for the time, costs, and coordination required in multijurisdictional enforcement.
• Draft with enforcement in mind: Include robust dispute resolution clauses and disclosure obligations to facilitate recovery.

Turning judgments into recovery

Cross-border disputes demand foresight and precision. Without early planning and a tailored enforcement strategy, even favourable outcomes may fail to translate into recovery. Businesses engaging in overseas transactions or seeking to pursue cross-border debts should consider enforceability at the outset, act with urgency when disputes arise, and obtain specialised advice to safeguard their position. Reach out to our team of experts to learn more.