Judgments Convention Research Articles

The Hague Jurisdiction Project – what options for The Hague Conference?

After the adoption of the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, the Hague Conference on Private International Law faces the question which methods should be employed to address matters relating to international direct jurisdiction in an efficient and politically feasible way. This paper will argue that the harmonization of international direct jurisdiction via a model law would not be conducive to foster legal certainty and predictability. Instead, the creation of a binding Protocol to the 2019 Hague Judgments Convention should be considered, unifying a core set of rules of international direct jurisdiction. In this way, the mixed-convention concept as developed by Arthur von Mehren in the 1990s in the context of the original Judgments Project would finally come to fruition. As the paper will demonstrate, this concept has the capacity to foster legal certainty and predictability, while being politically feasible.

Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention

The Judgments Convention establishes a list of jurisdictional filters, at least one of which must be satisfied for the judgment to circulate. One of those is the implied consent or submission of the defendant to the jurisdiction of the court of origin. While submission is a common jurisdictional basis in international litigation, its definition and treatment vary significantly across states, whether to establish the jurisdiction of the court of origin or as a jurisdictional filter at the enforcement stage in the requested court. This diversity is most evident with respect to the mechanics and consequences of objecting to jurisdiction to avoid submission. The Judgments Convention adopts a variation on an existing approach, arguably the least complex one, in pursuit of its goal to provide predictability for parties involved in cross-border litigation. This contribution canvasses the various approaches to submission in national law with a view to highlighting the points of convergence and divergence and revealing significant complexities associated with some approaches. It then examines how the text in the Convention came to be adopted and whether it is likely to achieve its purpose.

Judgments Convention: Application to Governments

The Hague Judgments Convention 2019 makes the classic distinction between private law matters within its scope (civil or commercial matters) and public law matters outside its scope. It also follows the same position in relation to State immunity used in the Hague Choice of Court Convention 2005 (see Art. 2(5) in 2019 and 2(6) in 2005). The innovative parts of the 2019 Convention relate to the exclusions from scope in Article 2 relating to the armed forces, law enforcement activities and unilateral debt restructuring. Finally, in Article 19, the Convention creates a new declaration system permitting States to widen the exclusion from scope to some private law judgments concerning a State, or a State agency or a natural person acting for the State or a Government agency. This article gives guidance on the correct Treaty interpretation of all these matters taking full account of the work of the Hague Informal Working Group dealing with the application of the Convention to Governments and the other relevant supplementary means of interpretation referred to in Article 32 of the Vienna Convention on the Law of Treaties.

The Public Policy Exception Under the New 2019 HCCH Judgments Convention

The public policy exception is inherently a fluid device. Its content is basically left to each State. A shared public policy is an exception. Therefore, the obligation of uniform interpretation, as provided in Article 20 of the 2019 Judgments Convention, will have an inherent limit here. Moreover, the Convention leaves some important issues, including procedure, to national rules. Each requested State retains a discretion to invoke the Convention grounds of refusal in a concrete case, and on whether to make an ex officio inquiry or have the parties prove those refusal grounds. The Convention also provides for the concrete applications of the public policy exception, following the model of the 2005 Choice of Court Convention. Here, a purely grammatical reading may create some peripheral problems, especially with the specific defences of conflicting judgments and parallel proceedings. Solutions may be found in the method of purposive interpretation and some general principles, particularly the evasion of the law and the abuse of rights, before resorting to the public policy defence.

Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century

The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters includes a non-discrimination disposition in Article 14, according to which there shall be no security, bond or deposit required from a party on the sole ground that such a party is a foreign national or is not domiciled or resident in the State in which enforcement is sought. It also deals with the enforceability of orders for payment of costs in situations where the precedent disposition applied, and lays down an ‘opt-out’ mechanism for those Contracting States that may not wish to apply that principle. This article frames the discussion of the non-discrimination principle in the wider context of previous private international law instruments as well as from the perspectives of access to justice, human rights and Sustainable Development Goals (SDGs), understanding that its inclusion in the 2019 Convention was an important, inescapable and necessary achievement.

Notification as a Ground for Refusal

The Hague Judgments Convention, which facilitates the recognition and enforcement of foreign judgments, provides for several grounds for the refusal of recognition, including refusal based on insufficient notification. While this ground for refusal of the Judgments Convention seems quite similar to those applied in other conventions, the comparison shows that there are several differences between the Judgments Convention and other texts of reference, both with respect to the context of application as well as with respect to the details of the wording. The optional nature of the grounds for refusal under the Judgments Convention indicates that its primary focus is the free circulation of judgments, and not the protection of the defendant. The latter’s protection is left to the discretion of the state of recognition: a sign of trust amongst the negotiators of the Judgments Convention, but also a risk for the defendant. Practice will show whether the focus of the negotiators was justified.

The Exclusion of Privacy Matters from the Judgments Convention

In July 2019, after many years of work and lengthy negotiations, the Members of the Hague Conference on Private International Law concluded the historic 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ‘Judgments Convention’). One issue of particular focus in the later phases of the negotiations of the Convention was what, if any, judgments ruling on privacy law matters should be permitted to circulate under the Convention. Having acknowledged that privacy is an evolving, broad and ill-defined area of the law and that there are obvious differences in the development and operation of privacy laws and policies in legal systems globally, the Members of the Diplomatic Session on the Judgments Convention determined to exclude privacy matters from the scope of the Convention under Article 2(1)(l). The purpose of this short article is to describe how and why the Diplomatic Session decided to exclude privacy matters from the Convention and to offer some observations on the intended scope of that exclusion.

The Judgments Convention: Some Open Questions

On the 2nd of July 2019 the negotiations on the HCCH Judgments Convention were successfully concluded. Since then, scholars’ attention concerning this new instrument has grown exponentially. This contribution seeks to explore some of the open issues that were discussed in the negotiation process but remained open in the final text, such as, in particular, the application of the Convention to pecuniary penalties (2) and negative obligations (4), as well as the definition of the res judicata effect (3).

The Jurisdictional Filters of the HCCH 2019 Judgments Convention

The Jurisdictional Filters of the HCCH 2019 Judgments Convention

The Hague Conference on Private International Law's Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?

AbstractThe Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments forms an integral part of the ambitious Judgments Project of the Hague Conference on Private International Law. In particular, this instrument endeavours to foster predictability and certainty in international commercial relations by enabling litigants to be accurately informed in advance of the circumstances in which the decision of the court of one contracting state will be recognized or enforced in the territory of another. The endorsement of the Draft Judgments Convention could accordingly prove advantageous to countries like South Africa, whose private international law on the recognition and enforcement of foreign judgments seems archaic and confined to a narrow set of precepts. This article identifies the loopholes in the country's policy and practice on the subject, and demonstrates the manner in which the Draft Judgments Convention could plausibly address these lacunae.

Connectivity and Decoupling: Belt and Road Dispute Resolution in a Fractured Trade Environment

A core theme of China’s Belt and Road Initiative (“BRI”) is connectivity, which extends to BRI-related dispute resolution. But BRI-related advances in dispute resolution connectivity will be occurring in an international trade environment that is becoming increasingly fractured; the extent to which a fractured trade environment might impede BRI-related opportunities for dispute resolution connectivity merits close consideration. A range of initiatives in Asia lower the risk of states “detaching” themselves from China. Particularly with respect to dispute resolution, China has participated in the conclusion of a Regional Comprehensive Economic Partnership agreement, the launch of the China International Commercial Court (“CICC”) and the International Commercial Dispute Prevention and Settlement Organization, as well as the development of a number of instruments that improve the enforceability of dispute resolution outcomes in a range of settings, including a few dozen bilateral treaties on judicial assistance as well as a set of multilateral instruments covering mediated settlement agreements (the Singapore Convention on Mediation), choice of court agreements (the Hague Choice of Court Convention), and court judgments (the Hague Judgments Convention). But a low risk of separation from China does not entail a low risk of criticism of China. Malaysia’s recent suspension, and subsequent resumption, of a few major BRI projects provides one clear example. In the particular context of dispute resolution, many responses to the launch of the CICC by China’s Supreme People’s Court have been critical or, at a minimum, skeptical. Rather than leading to separation, criticism instead can be a form of engagement. International engagement with the BRI and the Asian Infrastructure Investment Bank has been strong notwithstanding significant criticism of both initiatives. An increasingly fractured trade environment likely will not impede China’s advancement of dispute resolution connectivity, particularly given the active rulemaking and institution building occurring on China’s side of the divide.

The Newly Adopted Hague Judgments Convention: A Missed Opportunity for Intellectual Property

The Newly Adopted Hague Judgments Convention : A Missed Opportunity for Intellectual Property

The HCCH Judgments Convention in Australian Law

In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.

The Circulation of Judgments Under the Draft Hague Judgments Convention

The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, and will be key to the Convention’s acceptability to countries which might ratify or accede to any final Convention. An alternative approach to convention architecture, which would allow the test for judgment circulation to be built on as few as four rules, was considered and passed over in the earlier Working Group which preceded the Special Commission process. This article discusses the advantages and disadvantages of each of the 2018 draft Convention text as well as the alternative approach. It then suggests that, no matter which approach one considers to be better, the 2019 Diplomatic Conference should begin with an awareness of both options, and an understanding of the advantages and disadvantages of each, and move forward with a clear decision that the option chosen is the best alternative. Such consideration may (1) lead to the conclusion that the choices already made are the best for a multilateral treaty; (2) result in a determination that an alternative approach is a better option; or (3) demonstrate that one approach works best for some legal systems while another approach works best for other legal systems–leading to dual texts that could form the bases for differing bilateral and multilateral treaty relationships across the globe, while still improving the global framework for the recognition and enforcement of foreign judgments.

The Court Jurisdiction and Proceedings Transfer Act and the Hague Conferencees Judgments and Jurisdiction Projects

The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must be satisfied for civil and commercial judgments to be recognized under its rules. A remoter possibility, but expressly on the Conference’s agenda, is a further convention dealing with jurisdiction directly, potentially including acceptable standards of jurisdiction and dealing with issues of forum non conveniens (declining jurisdiction) and lis alibi pendens (parallel proceedings pursued concurrently in a foreign court). This paper compares the CJPTA’s jurisdictional rules with those included as “filters” in the latest draft of the judgments convention in February 2017, and with those that might form part of a further convention to harmonize jurisdictional rules directly. It concludes that the CJPTA could operate without difficulty in relation to the proposed judgments convention and, very probably, an eventual jurisdiction convention, because its jurisdictional standards are, almost without exception, more liberal than those incorporated in the Hague models. The paper also suggests that there is no reason to modify the CJPTA so as to bring it closer to the rules being developed in The Hague, since the CJPTA regulates jurisdiction, not just in international, but also in interprovincial cases, where different standards are appropriate.

The External Dimensions of the European Law of Civil Procedure A Transatlantic Perspective

The last two decades have witnessed the creation and rapid expansion of a new area of law called European civil procedure. Thus far, the growing number of rules of European civil procedure has been limited to inter-European transnational litigation, that is, litigation that has connections to two or more member states of the European Union. In the future, however, the European institutions are increasingly likely to start lawmaking initiatives for transnational litigation involving both EU and non-EU countries, such as the United States. The present contribution hones in on this latter category of lawmaking for transnational litigation involving EU and non-EU nations. Adopting a trans-Atlantic perspective, I try to shed light on the underlying interests with which Europeans on the one hand and Americans on the other are likely to approach treaty negotiations in this area, interests that are likely to play a crucial role in determining outcomes in lawmaking for transnational litigation involving Europe and the United States in the coming years. To examine these interests, I begin with the renewed effort to negotiate a judgments convention at The Hague. The Hague Judgments Project covers a potentially important part of external EU civil procedure. Thus, an analysis of the main interests underlying this project on both sides of the Atlantic yields important insights for other aspects of lawmaking in this area, such as whether the Lugano Convention can serve as a useful basis for negotiations between Europe and the United States, and what to do with jurisdiction over defendants from non-member states, matters I address in turn.

Recognition and enforcement of judgments in civil and commercial matters in the Brussels I Recast and some lessons from it and the recent Hague Conventions for the Hague Judgments Project

This article looks at the rules on the recognition and enforcement of civil and commercial judgments in the EU and internationally. It provides a detailed description of the procedure for recognition (if requested) and enforcement introduced by the new Brussels I in January 2015 and compares this with the previous procedure. The article then seeks to provide suitable recommendations for the procedure on recognition and enforcement in a future Hague Judgments Convention. In order to inform these recommendations, the article analyses the current procedures in Brussels I, the Hague Choice of Court Convention and the Hague Maintenance Convention 2007. The authors argue that the substantive grounds for non-recognition/enforcement (ie those unrelated to the jurisdictional basis of the original judgment) could be reduced to manifestly contrary to public policy and irreconcilable judgments. It would also be helpful if there were minimum harmonisation of the enforcement procedure so that national and international grounds for non-enforcement could be considered in the same set of proceedings.

The Hague Judgments Convention

AbstractThe Hague Judgments Convention of 2005 is the first global convention on international jurisdiction and recognition and enforcement of judgments in civil and commercial matters. The author explains the political and legal background of the Convention, its content and certain crucial issues during the negotiations of it. Finally, the author discusses the perspectives for international trade given that, in 2009, the USA and the European Union signed the Convention.

Finding A Proper Nexus For Constructing Specific (Special) Jurisdiction Regarding Commercial Contract and Tort Cases: A Comparative Study of the us and European Approaches

More than a decade's efforts of the Hague Conference on Private International Law have resulted in the Convention on Choice of Court Agreements concluded on 30 June 2005. However, compared with the original proposal, this Convention is rather a limited achievement indeed. The failure of the Hague negotiations for a broad jurisdiction and judgments convention provides an opportunity to reflect on which approach is better. This article tries to exhaustively examine this issue. To this end, Section B will critically review specific jurisdiction for commercial contract and tort cases in the US. Section C will critically explore special jurisdiction for commercial contract and tort cases in the European states, ie under the Brussels regime. While Sections B and C intend to tell the reader what the situation is respectively in the two systems, emphasis will be put on the different nexuses utilised for constructing specific (special) jurisdiction. Section D will compare the US approach and the European approach and examine the consequent differences in practice. Section E will analyse the advantages and disadvantages of the two different approaches. Based on the analysis of the previous sections, Section F will draw a conclusion on which approach is better.

Hague Choice of Court Agreements Convention 2005: Background, Negotiations, Analysis and Current Status

The article outlines some of the negotiating history of the failed Hague Judgments Convention (1992-2001) and of the successful Hague Choice of Court Convention (2002-2005). The latter was chosen from amongst the small areas of consensus within the Judgments Convention negotiations. In doing so the article argues that the Permanent Bureau was right in 1992 to argue for a recognition and enforcement Convention that would outlaw exorbitant jurisdictions, what the author describes as a 'flexible mixed Convention', and that the time is ripe for the Hague Conference to begin work again on such a project. The article does not provide a systematic analysis of the provisions of the Hague Choice of Court Convention but instead reviews the Article by Article analysis made by Ron Brand and Paul Herrup, two of the US negotiators of the Convention, in their book on the Convention. In doing so the article highlights where there are differences of interpretation of the Convention by Brand and Herrup and by Trevor Hartley and Masato Dogauchi, the rapporteurs for the Convention who wrote the official explanatory report. From time to time the author sets out interpretations that differ from those given by both Brand and Herrup and the explanatory report, notably on whether the existence of a choice of court 'agreement' is a concept susceptible to analysis as a question of fact, or is a matter for the law of the forum, or can only be looked at under the rules in the Convention on formal validity and the choice of law rules on substantive validity and capacity. The author also tries to shed some more light on some of the provisions of the Convention to augment what Brand and Herrup and the explanatory report have done, eg on declarations and reservations and the relationship with Community Law. Finally the article sets out the prospects for the Convention being adopted in some key countries and notes that the signature of the US and the EC in early 2009 will hopefully stimulate many countries to take the steps to become bound by the Convention. It sends the right signal to commerce at this time of global recession if commercial parties are given the opportunity to reduce litigation costs by ensuring that disputes are resolved in the courts that they have chosen in their contracts.