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The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters

Published online by Cambridge University Press:  18 October 2019

David P. Stewart
David P. Stewart*
Affiliation:
Of the Board of Editors. Professor from Practice, Georgetown University Law Center. The author attended the Diplomatic Session at which the Convention was adopted as an observer on behalf of the International Law Association.
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Type
Current Developments
Information
American Journal of International Law , Volume 113 , Issue 4 , October 2019 , pp. 772 - 783
Copyright
Copyright © 2019 by The American Society of International Law 

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References

1 The text of the Convention, as adopted at the 22nd Diplomatic Session of the Hague Conference on Private International Law, is available on the Hague Conference website at https://www.hcch.net/en/instruments/conventions/full-text/?cid=137. The current membership of the Conference includes eighty-two states and the European Union. See Hague Conference on Private International Law, HCCH Members, at https://www.hcch.net/en/states/hcch-members. The Convention was adopted by consensus by the representatives of all eighty-three HCCH members participating in the diplomatic session.

2 The Convention will enter into force subsequent to the deposit of the second instrument of ratification, acceptance, approval, or accession. See Convention, supra note 1, Art. 28. Uruguay signed the same day the Convention was adopted.

3 Hague Convention of 30 June 2005 on Choice of Court Agreements, available at https://www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court.

4 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 UST 2517, 330 UNTS 3 (done at New York, June 10, 1958), available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-1&chapter=22&clang=_en.

5 See Hague Conference on Private International Law, Convention on The Recognition and Enforcements of Foreign Judgments in Civil and Commercial Matters (1971), entered into force Aug. 20, 1979, available at https://assets.hcch.net/docs/bacf7323-9337-48df-9b9a-ef33e62b43be.pdf.

6 It was ratified or acceded to by only five States (Albania, Cyprus, Kuwait, the Netherlands, and Portugal).

7 For more background, see Teitz, Louise Ellen, Another Hague Judgments Convention? Bucking the Past to Provide for the Future, 29 Duke J. Comp. & Int'l L. 491 (2019)Google Scholar; von Mehren, Arthur, Drafting A Convention on International Jurisdiction and the Effects of Foreign Judgments Acceptable World-wide: Can The Hague Conference Project Succeed?, 49 Am. J. Comp. L. 191 (2001)CrossRefGoogle Scholar.

8 Hague Convention on Choice of Court Agreements (June 30, 2005), available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=98. For an analysis, see Ronald A. Brand & Paul Herrup, The 2005 Hague Convention on Choice of Court Agreements: Commentary and Documents (2009).

9 See Hague Conference on Private International Law, Status Table of Contacting Parties for the Convention of 30 June 2005 on Choice of Court Agreements, at https://www.hcch.net/en/instruments/conventions/status-table/?cid=98. The Convention is currently in force between Denmark, the European Union (and its member states), Mexico, Montenegro, and Singapore. It has also been signed by the United States, Ukraine, and the People's Republic of China.

10 See, e.g., Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, May 8, 1979, OAS No. B-41 (the “Montevideo Convention,” done at Montevideo, Republic of Uruguay (in force for Argentina, Bolivia, Brazil, Columbia, Ecuador, Mexico, Paraguay, Peru, Uruguay, and Venezuela)), available at http://www.oas.org/juridico/english/treaties/b-41.html; Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments, May 24, 1984, OAS No. B-50 (done at La Paz, Republic of Bolivia (to which only Mexico and Uruguay are parties)), available at http://www.oas.org/juridico/english/treaties/b-50.html. See also Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, Arts. 51–55, Jan. 22, 1993 (in force for Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russian Federation, Turkmenistan, Tajikistan, Ukraine, and Uzbekistan), available at http://cisarbitration.com/wp-content/uploads/2017/02/Minsk-Convention-on-Legal-Assistance-and-Legal-Relations-in-Civil-Family-and-Criminal-Matters-english.pdf.

11 See EU Regulation No. 1215/2012 (Dec. 21, 2012) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (also referred to as the Brussels I-bis Regulation), available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32012R1215.

12 See, e.g., Fung, King (Dicky) Tsang, Chinese Bilateral Judgment Enforcement Treaties, 40 Loy. L.A. Int'l & Comp. L. Rev. 1 (2017)Google Scholar.

13 For general background, see Hague Conference on Private International Law, The Judgments Project, at https://www.hcch.net/en/projects/legislative-projects/judgments. See also Bonomi, Andrea, Courage or Caution? A Critical Overview of the Hague Preliminary Draft on Judgments, 17 Y.B. Priv. Int'l L. 1 (2015/16)Google Scholar; Ronald A. Brand, The Circulation of Judgments Under the Draft Hague Judgments Convention (Working Paper No. 2019-02, Feb. 2019), available at http://ssrn.com/abstract=3334647; Teitz, Another Hague Judgments Convention, supra note 7. On the new Convention, a detailed Explanatory Report will be forthcoming. See also Francisco J. Garcimartín Alférez & Geneviève Saumier, Judgments Convention: Revised Draft Explanatory Report (Prelim. Doc. No. 1 of Dec. 2018), available at https://assets.hcch.net/docs/7d2ae3f7-e8c6-4ef3-807c-15f112aa483d.pdf.

14 See UNCITRAL, Status Table for the 1958 “New York” Convention, at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html.

15 Under Article 24, the new Convention is open to signature, ratification, and accession by “all States,” not only those that are members of the Hague Conference.

16 Convention, supra note 1, Art. 4, paras. 1–2. The latter also states that “[t]here may only be such consideration as is necessary for the application of this Convention.” The Convention addresses “foreign” judgments; other judgments fall beyond its scope. Under Article 15, the Convention does not “prevent the recognition or enforcement of judgments under national law.” Under Article 11, the Convention expressly extends to judicial settlements (transactions judiciaries) that have been approved by the courts of a Contracting State and are “enforceable in the same manner as a judgment in the State of origin.”

17 Id. Art. 3(1)(b).

18 Convention, supra note 1, Art. 4(3).

19 Id. Art. 4(4).

20 Id. Art.1(1).

21 Id.

22 Id. Art. 2(3).

23 Id. Art. 2(4).

24 Convention, supra note 1, Art. 2(2).

25 See generally Cristina M. Mariottini, The Exclusion of Defamation and Privacy from the Scope of The Hague Draft Convention on Judgments, 19 Y.B. Priv. Int'l L. 475 (2017/2018).

26 Convention, supra note 1, Art. 2(1)(g).

27 Id. Art. 5(1)(a)–(b), (d).

28 Id. Art. 5(1)(e)–(f). However, to preserve the autonomy of the 2005 Convention on Choice of Court Agreements (which, subject to a declaration pursuant to Article 22, only applies to exclusive choice of court agreements: to date, none of the ratifying members have made use of such a declaration), in accordance with Article 5(1)(m) of the 2019 Hague Judgments Convention, the Convention only takes into account agreements concluded or documented in writing “other than an exclusive choice of court agreement.”

29 Id. Art. 5(1)(g)–(h), (j).

30 Id. Art. 6. Judgments “ruled on rights in rem in immovable property shall be recognised and enforced if and only if the property is situated in the State of origin” (emphasis added).

31 Id. Art. 13(2).

32 Convention, supra note 1, Art. 6 (emphasis added).

33 Id. Art. 7(1)(a).

34 Id. Art 7(1)(b).

35 Id. Art. 7(1)(c). It also permits the enforcing court to postpone or refuse recognition or enforcement where proceedings between the same parties on the same subject matter are pending before another court in the requested state. Id. Art. 7(2).

36 Id. Art. 7(1)(d).

37 Id. Art. 7(1)(e).

38 Id. Art. 7(1)(f).

39 Id. Art. 10. However, the part of the judgment that awards compensatory damages may still circulate under the Convention in accordance with Article 9.

40 Id. Art. 14(1).

41 See, for example, Article 16 of the 1986 Convention on the Law Applicable to Contracts for the International Sale of Goods, Article 23 of the 2005 the Convention on Choice of Court Agreements, and Article 13 of the 2006 Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary.

42 Convention, supra note 1, Art. 22(1).

43 Id. Art. 22(3).

44 Cf. Foreign Money Judgments Recognition Act, 1962, 13 ULA 26, available at https://www.uniformlaws.org/committees/community-home?CommunityKey=9c11b007-83b2-4bf2-a08e-74f642c840bc; Uniform Foreign-Country Money Judgments Recognition Act, pt. 11, July 2005, 13 ULA, available at https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=456a563e-173b-b574-2029-f504a9e841eb&forceDialog=0. See generally Ronald A. Brand, Recognition and Enforcement of Foreign Judgments (Federal Judicial Center International Litigation Guide, Apr. 2012).

45 Convention, supra note 1, Art. 26.

46 Id. Art. 27.

47 Id. Art. 29(2).

48 The 1971 Convention contained an “opt-in” bilateralization provision, generally viewed as one of the reasons that the Convention did not succeed. See Ronald A. Brand, The Circulation of Judgments Under the Draft Hague Judgements Convention, 33–34 (2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3334647.

49 Convention, supra note 1, Art. 18(1).

50 The main exception is the Securing the Protection of our Enduring and Established Constitutional Heritage Act, § 3(a), Aug. 10, 2010, Pub. L. 111-223, 124 Stat. 2380, codified at 28 U.S.C.A. § 4102 (the so-called “Speech Act”). It precludes U.S. courts from recognizing or enforcing foreign defamation judgments without a determination either that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and press in that case as would be provided by the First Amendment (and the constitution and law of the State in which the domestic court is located) or that the party opposing recognition or enforcement of the judgment would have been found liable for defamation by a U.S. court applying the First Amendment (and the constitution and law of the State in which the domestic court is located). See Cristina M. Mariottini, Freedom of Speech and Foreign Defamation Judgments: From New York Times v. Sullivan via Ehrenfeld to the 2010 SPEECH Act, in Protecting Privacy in Private International and Procedural Law and by Data Protection. European and American Developments 115–68 (Burkhard Hess & Cristina M. Mariottini eds., 2015).

51 A few states have adopted both, and in the remaining states common law principles generate comparable outcomes. See generally Ronald A. Brand, The Continuing Evolution of U.S. Judgments Recognition Law, 55 Colum. J. Transnat'l L. 277 (2017); David P. Stewart, Recognition and Enforcement of Foreign Judgments in the United States, 12 Y.B. Priv. Int'l L. 179 (2010).

52 U.S. Const., Art. VI, cl. 2.

53 See, e.g., Kamel, Alexander, Cooperative Federalism: A Viable Option for Implementing the Hague Convention on Choice of Court Agreements, 102 Geo. L.J. 1821 (2014)Google Scholar; Silberman, Linda J., The Need for a Federal Statutory Approach to the Recognition and Enforcement of Foreign Country Judgments, in Foreign Court Judgments and the United States Legal System, ch. 5 (Paul B. Stephan ed., 26th Sokol Colloquium 2014)Google Scholar; David P. Stewart, Implementing the Hague Choice of Court Convention: The Argument in Favor of “Cooperative Federalism,” in Stephan, id., at ch. 8; Peter D. Trooboff, Implementing Legislation for the Hague Choice of Court Convention, in Stephan, id., at ch. 7; Burbank, Stephen B., Federalism and Private International Law: Implementing the Hague Choice of Court Convention in the United States, 2 J. Priv. Int'l L. 287 (2006)Google Scholar.