Introduction
In July 2019, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the “2019 Hague Judgments Convention” or the “Convention”) was finally adopted. This followed some 27 years of negotiations under the auspices of the Hague Conference on Private International Law. The Convention is particularly timely given the potential upheaval that might arise if and when the United Kingdom leaves the European Union (See 2019 Hague Judgments Convention).
Overview of the Convention
This new milestone treaty aims to do for court judgments what the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) did for arbitral awards. As the Hague Conference on Private International Law announced, “[t]he Convention will increase certainty and predictability, promote the better management of transaction and litigation risks, and shorten timeframes for the recognition and enforcement of a judgement in other jurisdictions”.
The 2019 Hague Judgments Convention applies only to civil and commercial judgments. It expressly excludes criminal, penal, administrative, revenue or customs judgments. It also carves out issues such as family, matrimonial, succession, defamation, intellectual property, insolvency, privacy and anti-trust/competition.
Similar to the New York Convention, a review of the merits of the foreign judgment is prohibited under Article 4(2) of the 2019 Hague Judgments Convention. This Article provides that “[t]here shall be no review of the merits of the judgment in the requested State. There may only be such consideration as is necessary for the application of this Convention.”
Under Article 7(1), the only exceptions to recognition and enforcement are: (i) a failure properly to notify or serve the claim; (ii) fraud; (iii) manifest incompatibility with public policy; (iv) that the proceedings in the court of origin were contrary to a choice of court agreement; and (v) that the judgment was inconsistent with a judgment given by the requested State between the same parties on the same subject matter. In addition, Article 7(2) provides that recognition or enforcement may be postponed or refused if proceedings between the same parties on the same subject matter are pending before a court of the requested State, provided that: (i) this court was seised before the court of origin; and (ii) there is a close connection between the dispute and the requested State.
Article 16 specifies that the Convention regime only covers judgments “if, at the time the proceedings were instituted in the State of origin, the Convention had effect between that State and the requested State.”
Article 28 establishes that the Convention shall enter into force 12 months after the ratification or accession of two States.
It may still be some years before the Convention enters into force. To date, only Uruguay has signed the Convention and there have been no ratifications or accessions. However, the European Commission has announced that it is in the process of preparing EU accession. The United Kingdom is also looking closely at accession in its own right post-Brexit. The Convention may provide an alternative enforcement regime once the United Kingdom is no longer covered by the Brussels regime.
