Enforcement of Foreign Judgments in Oman: The Significance of the Reciprocity Principle

This guest blog post is contributed by Dr Bader Al-Maskari – Assistant Dean of Postgraduate Studies and Research at the College of Law in Sultan Qaboos University.

Similar to most jurisdictions around the world, the enforcement of foreign judgments is a complicated matter in Oman in the absence of a bilateral treaty for the mutual recognition of judgments. Under Omani law, the enforcement of civil and commercial judgments is governed by article 352 of the Civil and Commercial Procedures Law promulgated by Royal Decree 29/2002. This article examines one of the key elements required by article 352: reciprocity in the enforcement of Omani judgments in the jurisdiction from which the judgment sought to be enforced is made.

The principle of reciprocity as a general concept is widely recognised and considered in public international law along with the principles of national treaty (the principle that foreigners must be given the same treatment as nationals) and most favoured nation treatment (the principle that foreigners must be given the same treatment given in the country to foreigners of a third country if this treatment is better).

The principle of reciprocity simply requires a state to provide foreigners a certain treatment if the home country of these foreigners provides the same treatment to the nationals of the first-mentioned state. For example, if Oman followed the principle of reciprocity in regard to entry of nationals without a visa with Country X, the nationals of Country X will be allowed to enter Oman without a visa if Country X allows Omani nationals to enter Country X without a visa.

There are many rationales for adopting the principle of reciprocity as this principle allows the state to bargain with other states to provide special treatment for its own nationals by providing this same treatment to the nationals of these other states, which can provide opportunities for both the nationals of Oman and the nationals of these other states in a way that contributes to the realisation of the better well being of all parties involved, increased exchanges in all aspects of life between them, including that of foreign investment.

In regard to the recognition of foreign judgments, the Civil and Commercial Procedures Law provides in article 352 a number of conditions before Omani courts are permitted to recognise and enforce such judgments, namely:

1. That the judgment is issued from a competent judicial authority and that the judgment is final.
2. That the litigants in the dispute were properly notified of the lawsuit and they were properly represented in it. 
3. That the judgment does not involve a matter that violates Omani law.
4. That the judgment does not contradict a previous judgment issued by Omani courts and that it does not prejudice public order or morals.
5. That the country from which the judgment is made accepts enforcing Omani judgments.

The existence of a requirement of reciprocity appears at the first instance to be a logical and a reasonable requirement to have, especially if Oman is motivated by the desire to provide those with Omani judgments in their favour to also have their judgments enforced in other countries. This requirement has also been confirmed by the Supreme Court in a number of its judgments.

Notwithstanding the motivations behind this requirement, its application in real life appears to be challenging and operates as an obstacle to the enforcement of legitimate judgments that ought to be enforced. Conceptually, this requirement places a significant burden on the judge as it requires him to be aware of the position of a foreign legal system in regard to the enforcement of Omani judgments, which is not only difficult to determine, but is probably a position that does not exist at all if no Omani judgment was ever presented to that foreign legal system to test its enforceability. Furthermore, this requirement may carry political aspects as it becomes subjective and reliant on the existence of bilateral relations between the two countries in a manner that does not necessarily contribute to protection of the rights of the litigants or the realisation of justice.

While it might be easy to argue that the first four elements of article 352 should be sufficient to allow a court to recognise a foreign judgement, the practical reality of the differences between the legal systems of countries all around the world makes it difficult to figure out a quick and systematic approach for recognising foreign judgments by local courts, in Oman or elsewhere, and that is the very reason why states signed multilateral and bilateral treaties for judicial cooperation and the recognition of foreign judgments such as the Riyadh Agreement and the Judicial Cooperation Agreement between Oman and India.