On 2
nd of July 2019, the Hague Conference on Private International Law (HCCH) signed the Final Act of, and thus adopted, the 2019 Convention of the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (hereinafter the «Convention»). It intends to create a single global framework for recognition and enforcement of judgments across borders.
The HCCH has set high expectations about the Convention’s potential impact. Secretary General of the ΗCCH during his opening remarks at the session which agreed the text of the Convention referred to the Convention as a «
gamechanger for cross-border dispute settlement and an apex stone for global efforts to improve real and effective access to justice.»
The purpose of this Convention is to promote effective access to justice for all and to facilitate rule-based multilateral trade and investment, and mobility, through judicial co-operation. The Convention also aims to increase certainty and predictability and shorter timeframes for the recognition and enforcement of a judgment in other jurisdictions.
The Convention regulates recognition and enforcement of judgments in civil and commercial matters, with some exceptions, including,
inter alia, maintenance obligations, other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships, wills and succession, insolvency, carriage of passengers and goods, defamation, intellectual property and certain anti-trust (competition) matters. Further, this Convention does not apply to arbitration and related proceedings.
Pursuant to article 3 of the Convention, it only applies to decisions on the merits given by a Court, including judicial settlement, and determination of costs or expenses. Interim measures of protection are not covered by the Convention.
Judgments are eligible for recognition and enforcement under the Convention, provided that there is a voluntary link between the person against whom enforcement is sought and the state or the court of origin. This link can be established if one of the following,
inter alia, requirements is met:
- that person's habitual residence, principal place of business or branch, or the place of performance or concerned immovable property is in the state of origin; or
- that person being the claimant or counterclaimant; or
- consent of that person to jurisdiction of the court of origin; or
- that person argued on the merits before the court of origin without contesting jurisdiction within the timeframe provided in the state of origin, unless it is evident that an objection to jurisdiction or to the exercise of jurisdiction would not have succeeded under that law.
Recognition or enforcement may be refused only on the grounds specified in the Convention, for example where the defendant of the document initiating the procedure was not notified, or the recognition or enforcement would be manifestly incompatible with the public policy of the requested State, or the decision was taken with fraud.
In terms of procedure, the Convention specifies the documents to be produced by the party seeking recognition or applying for enforcement of a judgment. In particular, the applicant shall produce,
inter alia, the following:
- a complete and certified copy of the judgment;
- if the judgment was given by default, the original or certified copy of a document establishing that the document which instituted the proceedings, or an equivalent document was notified to the defaulting party;
- any documents necessary to establish that the judgment has effect or, where applicable, is enforceable in the state of origin.
The procedure for recognition, declaration of enforceability or registration for enforcement, and the enforcement of the judgment, are governed by the law of the requested State unless this Convention provides otherwise.
It remains to be seen whether the Convention will have the impact foreseen by the HCCH. This to a great extent depends on the number of States choosing to ratify the Convention. Nevertheless, its effect will certainly not be immediate as it will only come to force approximately 12 months after ratification by a State and it will only apply in regard to judgments issued in proceedings at a time when the Convention was in force for both the state of origin and the state of enforcement.
To this date, only Uruguay has ratified the Convention and the European Commission announced that it began the process of preparing EU accession to the Convention.