The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook 150995953X, 9781509959532

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THE HCCH 2019 JUDGMENTS CONVENTION This book analyses, comments and further develops on the most important instrument of the Hague Conference on Private International Law (HCCH): the HCCH 2019 Judgments Convention. The HCCH Convention, the product of decades of work, will have a transformative effect on global judicial cooperation in civil matters. This book explores its ‘mechanics’, ie the legal cornerstones of the new Convention (Part I), its prospects in leading regions of the world (Part II), and offers an overview and comment on its outlook (Part III). Drawing on contributions from world-leading experts, this magisterial and ambitious work will become the reference work for lawmakers, judges, lawyers and scholars in the field of private international law. Volume 35 in the series Studies in Private International Law

Studies in Private International Law Recent titles in the series Commercial Issues in Private International Law: A Common Law Perspective Edited by Vivienne Bath, Andrew Dickinson, Michael Douglas and Mary Keyes Jurisdiction and Cross-Border Collective Redress: A European Private International Law Perspective Alexia Pato Rethinking Judicial Jurisdiction in Private International Law Milana Karayanidi Economic Sanctions in EU Private International Law Tamás Szabados Clawback Law in the Context of Succession Jayne Holliday Place of Performance: A Comparative Analysis Chukwuma Okoli Private International Law in Nigeria Chukwuma Okoli and Richard Oppong Planning the Future of Cross Border Families: A Path Through Coordination Edited by Ilaria Viarengo and Francesca Villata The Private International Law of Authentic Instruments Jonathan Fitchen The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective Abubakri Yekini A Guide to Global Private International Law Edited by Paul Beaumont and Jayne Holliday Parental Child Abduction to Islamic Law Countries Nazia Yaqub The Application of Foreign Law in the British and German Courts Alex Critchley The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook Edited by Matthias Weller, João Ribeiro-Bidaoui, Moritz Brinkmann and Nina Dethloff

The HCCH 2019 Judgments Convention Cornerstones, Prospects, Outlook

Edited by

Matthias Weller João Ribeiro-Bidaoui Moritz Brinkmann and

Nina Dethloff

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2023 Copyright © The editors and contributors severally 2023 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2023. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. ISBN: HB: 978-1-50995-953-2 ePDF: 978-1-50995-955-6 ePub: 978-1-50995-954-9 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

SERIES EDITOR’S PREFACE It is a pleasure to be able to write the series editor’s preface for this excellent book on the HCCH Judgments Convention 2019. The editors are to be highly commended for the team of authors they have assembled. It is not possible to refer to all the chapters in the book in this short preface. However, although only a few of the chapters will be highlighted this does not imply any weakness in those that I do not mention because the overall standard of the book is first class and it has clearly been very well edited with excellent cross-references to other chapters in the book. The editors and the authors of the book are no doubt delighted that Hans van Loon has written such an excellent “General Synthesis and Future Perspectives” chapter pulling together the best ideas from the other chapters and adding his own insights. Those insights are invaluable for many reasons, not least because of the long service (nearly 35 years) Hans gave to the Permanent Bureau of the Hague Conference on Private International (HCCH), for the last seventeen years as the Secretary General until his retirement in 2013. He was a crucial player in the development of the Judgments Project in the 1990’s, in managing the fall out of its failure to achieve consensus in 2001, in piloting a successful Choice of Court Convention in 2005 (helped by his parallel work on revising the HCCH Statute) and in laying the foundations for the Judgments Convention 2019. Hans was an international civil servant/diplomat but first and foremost he was and is an excellent private international lawyer. He is just as comfortable in academic exchanges as he is in technical drafting of a Treaty because of his wide reading in the discipline and careful attention to detail. João Ribeiro-Bidaoui and Cristina M Mariottini were both involved in the negotiations of the Judgments Convention with the former taking the lead role in the Permanent Bureau in managing the negotiations. Their chapter on the novel provision in Article 29 of the Judgments Convention on how States enter into Treaty relations with each other under the Convention is highly original. Readers will gain insights into where this provision fits into the pantheon of HCCH Convention solutions on establishing Treaty relations between Parties to a Convention. The chapter also sheds light on current court practice in recognition and enforcement of judgments in delicate national law cases where public policy was argued as a ground for nonrecognition and enforcement of judgments in relation to systemic problems in the State where the judgment was rendered. This leads the authors to argue convincingly that Article 29 is a good feature of the 2019 Convention that should be available for States to use as they see fit. It is also worth highlighting the very thorough and insightful chapter by the Principal Legal Officer in the Permanent Bureau, Ning Zhao, who piloted the 2019 Convention and is now piloting the HCCH Jurisdiction Project which will hopefully produce a Convention regulating parallel proceedings in civil and commercial cases. There are many helpful points by Ning Zhao in understanding the development of the 2019 Convention and the early work on a new Convention under the Jurisdiction project. In particular she correctly describes Article 29 of the 2019 Convention as a “pragmatic” solution to a difficult problem and wisely notes that by requiring States to object to Treaty relations with another State it decreases the likelihood of this provision being used

vi  Series Editor’s Preface carelessly or without thought and therefore its use is likely to be rare. The problems associated with having to positively accept the accessions of other States are seen in relation to the HCCH Conventions on Taking of Evidence and Child Abduction where it is often hard to see any good reason why some States have failed to accept the accessions of other States (see eg the UK referred to below). The jurisdictional filters are at the very heart of the Convention and require quite a lot of space to be able to say something profound on them. Thankfully the chapter by Pietro Franzina (another valued colleague who was part of the Italian delegation in the latter stages of the negotiations on the 2019 Convention) analyses the filters thoroughly taking full account of the explanatory report and other relevant literature. One of the many issues he discusses is who has the onus of proof in having to establish whether one of the jurisdictional filters is satisfied in relation to the judgment that a person is trying to get recognised and enforced. He is right to indicate that in principle this will fall on the party seeking recognition and enforcement. However, it may be that some States will be pro-recognition on this issue when they implement the Convention. One model that can be used is for automatic, or near automatic, registration of the judgment in the first instance court leaving it to a person opposing recognition and enforcement to bring an appeal against the registration. In such a system the appellant would have the onus of proof to establish that there was no satisfactory jurisdictional filter for the judgment under Articles 5 and 6. The chapter by my colleagues from the EU who negotiated the 2019 Convention (quite brilliantly and modestly in the case of Andreas Stein who led the team that I had the privilege to be a member of) is a very interesting insight into why the EU made a declaration taking out of the scope of the Convention judgments in relation to non-residential tenancies over property situated in the EU (thankfully not in relation to property outside the EU). Hopefully this Declaration is something that could be removed or at least reduced in the future if the Brussels Ia Regulation and the Lugano Convention are reformed to remove or reduce the exclusive jurisdiction that those instruments provide for non-residential tenancies (in my view at least party autonomy should be permitted for B2B commercial tenancies). It is revealing that the Commission did not propose a declaration on insurance (unlike the HCCH Choice of Court Convention 2005 for which the EU has a declaration) and the reasons given in the chapter by Stein and Lenka Vysoka show that the Commission is aware that the internal provisions in EU law on insurance contracts protect more than weaker parties. They were satisfied with the protection for weaker parties in insurance contracts provided by the protection for consumers in Article 5(2) of the Convention and did not feel the need to protect the other (commercial) parties to insurance contracts that are protected internally in the EU but are not protected at the global level by the Convention. A very wise and pragmatic response which will hopefully also be reflected in Commission Proposals for future reforms of the Brussels Ia Regulation and the Lugano Convention on the protective jurisdictions for insurance matters. The book covers many areas of the world to see what the prospects are for the 2019 Convention being accepted there. A key area of weakness for the HCCH is Africa. However, it is encouraging that a new generation of African private international law scholars is coming through in academia and arguing strongly for African countries to get involved in the HCCH and ratify the 2019 Convention. This is exemplified by the cogent chapter in this book by two of my former students (Abu Yekini and Chukwuma Okoli) who both have Lectureships in leading English Law Schools. One important State not systematically analysed in the book is the UK. Thankfully there have been some important recent developments in the UK in relation to the 2019 Convention

Series Editor’s Preface  vii which can be captured in this preface. The UK opened a consultation on becoming a Party to the Convention on 15 December 2022.1 In that consultation the UK Government (Ministry of Justice) said: The UK Government is seeking views on its plan for the UK to become a Contracting State to Hague 2019 by ratifying it and implementing it into domestic law. (para 1.1)

I participated in a roundtable organised by the UK Government in January 2023 as part of its consultation and all the responses during that meeting were positive in terms of the UK becoming a Party to the Convention as soon as possible. The UK Government in its consultation paper indicated that: If the UK Government decides, having given careful consideration to all of the representations received in response to this consultation, that the UK should sign and ratify the Convention, then it would be implemented using powers in the Private International Law (Implementation of Agreements) Act 2020. (para 6)

This would be the first use of the 2020 Act to allow the UK Government to give internal effect to an HCCH Convention. The UK Parliament essentially has a choice whether or not to support UK ratification of the Convention (it cannot amend an international treaty) and therefore it makes sense that delegated legislation under the 2020 Act will suffice to allow Parliament to make this ‘Yes’ or ‘No’ decision. This has the advantage that the UK could process the delegated legislation quite quickly after the end of the consultation period on 9th February 2023. Hopefully the UK will become a Party to the Convention in 2023 and it will enter into force between the UK, EU and Ukraine twelve months later in accordance with Article 29 of the Convention. It is encouraging to note that the UK Government wants the UK to be “a preeminent global leader in” private international law (para 1.2 of the consultation). Early ratification by the UK of the HCCH 2019 Judgments Convention would be a significant step towards the UK being able to begin to fulfil such a high ambition. There are a number of other things it could do to achieve this worthy goal, see Paul Beaumont, ‘Some Reflections on the Way Ahead for UK Private International Law after Brexit’ (2021) 17(1) Journal of Private International Law 1-17, notably accepting the accession of more States to the HCCH Conventions on Child Abduction 1980 and Taking of Evidence 1970. The UK is contemplating a registration system for the implementation of the Hague Judgments Convention 2019 (see para 4.1 of the Consultation Paper) in which ‘the requesting party must set out the relevant indirect jurisdictional ground, which the court must be satisfied of ’. This may be reasonable as it would then allow clarity for the appellant to know what they are appealing against. What remains unclear from the consultation paper is whether the party seeking registration of the judgment should need to prove anything at the registration stage other than that there is a judgment from another Contracting State. Consideration should be given to whether registration would be facilitated by using the Hague’s recommended form to accompany the judgment2 which does not require the party seeking recognition or enforcement of the judgment to set out on the form the indirect jurisdictional basis under Article 5 or 6 of the

1 See https://www.gov.uk/government/consultations/hague-convention-of-2-july-2019-on-the-recognition-andenforcement-of-foreign-judgments-in-civil-or-commercial-matters-hague-2019/consultation-on-the-hagueconvention-of-2-july-2019-on-the-recognition-and-enforcement-of-foreign-judgments-in-civil-or-commercialmatters-hague-201#:~:text=1.1%20The%20consultation&text=It%20was%20concluded%20on%202,implementing%20 it%20into%20domestic%20law. 2 See https://www.hcch.net/en/publications-and-studies/details4/?pid=6739&dtid=65.

viii  Series Editor’s Preface Convention which is being relied upon. Perhaps this is the best approach and most consistent with the spirit of the Convention in promoting recognition and enforcement of foreign judgments, as it would mean that the onus of proof could be placed on the party objecting to the judgment that has been registered to show that there was no adequate jurisdictional basis for the judgment under the Convention. The HCCH Judgments Convention 2019 will enter into force on 1 September 2023 between the EU (except Denmark) and the Ukraine and therefore will be in force in 27 States. The portents for other States becoming Parties to the Convention are encouraging as already Costa Rica, Israel, Russia, Uruguay, and USA have signed the Convention and, as we have seen above, the UK Government is consulting on becoming a Party. Paul Beaumont FRSE Professor of Private International Law and Head of Law University of Stirling

PREFACE This book is a public service. Some of the most renowned global experts on private international law have generously agreed to come together and share insightful scholarly contributions about the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (HCCH 2019 Judgments Convention). And such is public service because their contributions, in this book, will assist States that become parties to the Convention, and their courts, in fulfilling their international legal obligations; obligations not only pursuant to Article 20 of this Hague Convention, on the courts’ duty of autonomous and uniform interpretation, but also pursuant to Article 32 of the 1969 Vienna Convention on the Law of Treaties, when it refers to ‘supplementary’ devices that may be considered in interpreting international treaties, as is the case for international scholarship. The authors in this book bring together outstanding academic knowledge, extensive diplomatic and practice experience, and diverse legal backgrounds, that will proficiently assist in the process of establishing the intended meaning of the provisions of the Convention, an indispensable step for its effective application. The HCCH 2019 Judgments Convention is an international treaty adopted at the TwentySecond Session of the Hague Conference on Private International Law (HCCH), convened at The Hague from 18 June to 2 July 2019, at the invitation of the Government of the Netherlands, by fully empowered diplomatic delegates of 73 governments from all regions of the world, representing well above 4/5 of the world population and of global GDP.1 This is the only Convention adopted by the HCCH in over 15 years. To put it into context, the date of the previously adopted Convention, 2007, was the year of the first iPhone, marking the beginning of an era with new heights for individual autonomy and cross-border exchanges, with its obvious legal consequences.  It is a treaty like many treaties, but it is not just one of many treaties. Since the nineteenth century, attempts had been made to establish a basic common legal framework that would ensure as much protection and access to justice to those embedded in transnational life, than the equivalent protection already enjoyed by those solely confined to a border. If in the nineteenth century, surely such aspiration was to benefit a limited elite of privileged families and traders, the same cannot be said nowadays, despite the resurgence of popularity of harder borders against better livelihood, expanded trade or harmonious cultural understanding. The Convention is, therefore, and first and foremost, an instrument to facilitate access to justice to those exposed to the challenges presented by borders. Borders that can justify all sort of national interests, political hazards and submissions to the law of the strongest, against citizens

1 Delegates from Albania, Argentina, Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Canada, Chile, China, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Egypt, Estonia, European Union, Finland, France, Germany, Greece, Hungary, India, Ireland, Israel, Italy, Japan, Jordan, Kazakhstan, Korea (Republic of), Latvia, Lithuania, Luxembourg, Malta, Mexico, Morocco, Netherlands, New Zealand, Norway, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Moldova, Romania, Russian Federation, Saudi Arabia, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Tunisia, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Viet Nam and Zambia, as well as the of Indonesia, Iran, Republic of Uzbekistan, Thailand, United Arab Emirates and Zimbabwe, participating as Observers.

x  Preface and corporations that, by birth, habitual residency, place of incorporation, of doing business or performance, may not be fully protected under such magical condition attributed by more or less historical lines on maps – a still-perceived essential trait of sovereignty in the administration of justice, be it more or less legitimate. Those natural and legal persons wandering across border lines are the clients of this Convention. Not the states, not their sovereign interests or economic interests. But the protection of that minority of individuals and companies that operate in multinationality and pluri-residency, when sovereignty, nationality and clear residency determines most rights and obligations among our societies. A reality that Tobias Asser understood well before our time. Over 150 years ago, his vision was clear in an article published in the Revue de Droit International et de Legislation Comparée:2 The enforcement of foreign judgments, the conditions of which to be stipulated, in a word, everything relating to this matter, gives rise to so many considerations of different kinds that, in order to obtain the necessary agreement between several states in this respect, it is important to avoid any bias, and to make, if necessary, concessions regarding to special clauses, while maintaining the fundamental principles. By approving only what one considers to be the perfect system, one exposes oneself to obtaining nothing at all. I believe that a convention, having as its basis international agreement about the laws on jurisdiction, the principal formalities of the trial and the conflict of laws, would form the nucleus of a Judicial Union (…) which, without prejudicing the sovereignty or autonomy of each State, would remove the obstacles which the difference of nationality still places on the distribution of justice.

Tobias Asser’s vision at the time revolved around discussions on a then recent law of the North German Confederation (Norddeutscher Bund) and how it conflicted with the several treaties most of the German States had signed on recognition and enforcement of judgments. In France, jurists were vocal on the need to discuss an international instrument inspired by the then very recent Treaties on Enforcement of Judgments, signed with Italy, Switzerland, and the Grand-Duchy of Baden. Hopefully, 150 years after such discussions, the HCCH 2019 Judgments Convention brings us a big step closer to Asser’s vision. That is why the important remaining questions before us are perhaps not if the Convention is the best possible agreement or if a state should or not adopt it. The fundamental questions before us may well be how many citizens and companies are denied access to justice because there is no operating Convention, and what impact is this having, on a daily basis, on general perceptions about the advancement of the rule of law at the international level. Still, for the Convention to work, as a system, and to ensure mutual trust, much more is necessary than its current 32 articles. We may need a veritable global jurisconsultorium, accessible in several languages, composed of a case-law database and of regular and institutionalized judicial roundtables. We may need to see the Convention as a model law for legal reform of domestic legislation on recognition and enforcement of foreign judgements, especially in countries still lacking related frameworks. And we may need it to become a powerful instrument to support rule-of-law policies and to justify aid-for-development programmes, aimed at enhancing judiciaries and their judicial independence across the globe. One must not forget that international organisations, like the HCCH, are not supposed to be just simply concerned about technicalities of commercial or procedural law or about its unification and harmonisation. As international organisations, the HCCH, and others, would have no interest in the unification and modernisation of private international law, if its founders and its 2 TMC Asser, ‘De l’effet ou de l’exécution des jugements rendus a l’étranger en matière civile et commercial’, (1869) 1 Revue de droit international et de législation comparée 473, at p. 492–93 (English translation provided by the editors).

Preface  xi community of interest, were not convinced that such technical work is conducted, on the long run, in pursuance of greater goals such as the promotion of the rule of law, access to justice and, ultimately, peace.  Against this background, our book comprises three parts. In the first part, cornerstones of the Convention are explained and discussed: Challenges, compromises and chances for the scope of the Convenion (Chapter 1, Xandra Kramer), its concepts for ‘judgments’, ‘recognition’ and ‘enforcement’ (Chapter 2, Wolfgang Hau), its framework for controlling indirect jurisdiction (Chapter 3, Pietro Franzina), its grounds for refusal of recognition or enforcement (Chapter 4, Marcos Dotta Salgueiro), the mechanism offered by Article 29 as a catalyst of a Global Judicial Union (Chapter 5, João Ribeiro-Bidaoui and Cristina Mariottini), and the relationship of the Convention to its sister instrument, the HCCH 2005 Convention on Choice of Court Agreements (Chapter 6, Paul Beaumont). In the second part, prospects of the Convention for the world are explored by presenting perspectives from selected regions: the European Union (Chapter 7, Andreas Stein and Lenka Vysoka), the United States of America and Canada (Chapter 8, Geneviève Saumier and Linda Silberman), from the Arab world (Chapter 9, Béligh Elbalti), from South East European and EU Candidate Countries (Chapter 10, Ilija Rumenov), the MERCOSUR (Chapter 11, Verónica Ruiz Abou-Nigm), ASEAN (Chapter 12, Adeline Chong), Africa (Chapter 13, Abubakri Yekini and Chukwuma Okoli), and China (Chapter, 14, Zheng Tang). In the last part, we provide an outlook: Lessons to be learned for the future from the genesis of the Convention (Chapter 15, Ning Zhao), reflections on the relation between international commercial arbitration and judicial cooperation in civil matters with a view towards an integrated approach (Chapter 16, José Angelo Estrella Faria), and, putting all strands together, a general synthesis and future perspectives (Chapter 17, Hans van Loon). The initiative for this book emerged from immediately fruitful contacts with the Permanent Bureau of the HCCH established during the Summer Programme of the Hague Academy for International Law in 2019, when Matthias Weller gave a special course on concepts and issues of, inter alia, judicial cooperation in civil matters.3 Since then, the project has constantly received tremendous support: on a personal level by three enthusiastic and brilliant co-editors, by equally enthusiastic and brilliant authors, and institutionally by the Rhenish Friedrich-Wilhelm University of Bonn and the HCCH, and many others. Special thanks go to Achim Czubaiko, Research Fellow at the Institute for German and Civil Procedural Law at the University of Bonn, who assisted in the making of this book with outstanding efforts. It was the extraordinary spirit of all involved that enabled us to overcome the many difficulties that had arisen from the Pandemic underway, and editors and authors are now looking forward to presenting this book at the international conference of the University of Bonn and the Permanent Bureau of the HCCH on 9 and 10 June 2023. Prof Dr Matthias Weller, Mag.rer.publ. Director of the Institute for German and Civil Procedural Law Rhenish Friedrich-Wilhelm University of Bonn, Germany

Dr João Ribeiro-Bidaoui, Former First Secretary and Diplomat Lawyer (2018–22) at the Permanent Bureau of the Hague Conference on Private International Law, The Hague

3 Matthias Weller, Mutual trust: A suitable foundation for private international law of regional integration communities and beyond?, Recueil des Cours (RdC) 423, Den Haag 2022, pp 41–378.

xii  Preface Prof Dr Moritz Brinkmann, LL.M. (McGill) Director of the Institute for German and Civil Procedural Law Rhenish Friedrich Wilhelm University of Bonn, Germany

Prof Dr Nina Dethloff, LL.M. (Georgetown) Director of the Institute for German, European and International Family Law Rhenish Friedrich-Wilhelm University of Bonn, Germany

CONTENTS Series Editor’s Preface���������������������������������������������������������������������������������������������������������������������������� v Preface��������������������������������������������������������������������������������������������������������������������������������������������������� ix PART I CORNERSTONES 1. Scope of Application: Challenges, Compromises and Chances���������������������������������������������������� 3 Xandra Kramer 2. Judgments, Recognition, Enforcement����������������������������������������������������������������������������������������� 21 Wolfgang Hau 3. The Jurisdictional Filters�������������������������������������������������������������������������������������������������������������� 41 Pietro Franzina 4. Grounds for Refusal��������������������������������������������������������������������������������������������������������������������� 71 Marcos Dotta Salgueiro 5. Article 29 of the HCCH 2019 Judgments Convention: From a Mechanism on Treaty Relations to a Catalyst of a Global Judicial Union���������������������������������������������������� 87 João Ribeiro-Bidaoui and Cristina M Mariottini 6. The Hague System for Choice of Court Agreements: Relationship of the HCCH 2019 Judgments Convention to the HCCH 2005 Convention on Choice of Court Agreements������������������������������������������������������������������������������������������������� 125 Paul Beaumont PART II PROSPECTS FOR THE WORLD 7. European Union������������������������������������������������������������������������������������������������������������������������� 145 Andreas Stein and Lenka Vysoka 8. Perspectives from the United States and Canada��������������������������������������������������������������������� 163 Geneviève Saumier and Linda Silberman 9. Perspectives from the Arab World��������������������������������������������������������������������������������������������� 181 Béligh Elbalti 10. Perspectives from Southeast European and EU Candidate Countries������������������������������������� 211 Ilija Rumenov

xiv  Contents 11. Gains and Opportunities for the MERCOSUR Region������������������������������������������������������������ 239 Verónica Ruiz Abou-Nigm 12. Perspectives for ASEAN������������������������������������������������������������������������������������������������������������� 259 Adeline Chong 13. Prospects for Africa�������������������������������������������������������������������������������������������������������������������� 281 Abubakri Yekini and Chukwuma Okoli 14. China������������������������������������������������������������������������������������������������������������������������������������������ 297 Zheng Tang PART III OUTLOOK 15. Lessons Learned from the Genesis of the HCCH 2019 Judgments Convention��������������������������������������������������������������������������������������������������������������������������������� 315 Ning Zhao 16. International Commercial Arbitration and Judicial Cooperation in Civil Matters: Towards an Integrated Approach���������������������������������������������������������������������������������������������� 337 José Angelo Estrella Faria 17. General Synthesis and Future Perspectives������������������������������������������������������������������������������� 355 Hans van Loon Index�������������������������������������������������������������������������������������������������������������������������������������������������� 383

part i Cornerstones

2

1 Scope of Application: Challenges, Compromises and Chances XANDRA KRAMER*

I.  Introduction: Regulating Cross-Border Enforcement The adoption of the HCCH Judgments Convention on 2 July 2019 can be considered a turning point in international judicial cooperation. It marked the end of a long period spanning three decades of attempts to establish a worldwide convention on the recognition and enforcement of judgments in civil and commercial matters.1 The enforceability of judgments is crucial for international trade and business, but a global framework for judicial cooperation was lacking. Over time, bilateral and regional conventions have been established, most notably the 1968 Brussels Convention2 and the parallel Lugano Convention as well as a few global conventions dealing with the recognition and enforcement of decisions in specific matters.3 In Europe, the Brussels Convention and succeeding Regulations and the Lugano Convention (referred to as the ‘Brussels regime’) have greatly facilitated the free circulation of judgments. In 2015, when recast Regulation no 1215/2012 became applicable (Brussels Ibis), the exequatur – the intermediate procedure to obtain a declaration of enforceability – was abolished, making the enforceability of judgments within the EU automatic.4 At the global level, establishing a general enforcement convention has proved to be extremely challenging. The first attempts were made a century ago and after resuming work after the Second World War, these resulted in two conventions on choice of court and a general enforcement convention.5 None of these conventions entered into force due to a lack of ratifications.6 This is * Professor at Erasmus University Rotterdam and Utrecht University, The Netherlands. 1 See, among others, RA Brand, ‘Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead’ (2020) 67 Netherlands International Law Review 3; H van Loon, ‘Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’ (2020) 38 Nederlands Internationaal Privaatrecht 4. 2 Most recently succeeded by the Brussels Ibis Regulation, Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1. In the meantime, the evaluation of this Regulation is ongoing pursuant to Art 79, which is likely to result in another recast. 3 For instance, the CMR 1956 Convention for road transport and a number of HCCH Conventions, primarily dealing with family matters. 4 Grounds for refusal have been retained, see Art 45 Brussels Ibis Regulation. 5 HCCH 1958 Sales (Choice of Court) Convention; HCCH 1965 Choice of Court Convention; HCCH 1971 Judgments Convention. 6 van Loon (n 1) 6–7, refers in this regard to the 1968 Brussels Convention that was in part inspired by these, and which was one of the reasons European countries had less interest in the HCCH Conventions.

4  Xandra Kramer particularly striking considering the long-standing global judicial cooperation in other areas of litigation, including the widely ratified HCCH Conventions on the service of documents and the taking of evidence.7 It also contrasts the worldwide enforceability of arbitral awards enabled by the UNCITRAL 1958 (New York) Convention, which currently has 170 Contracting States. The global enforceability of arbitral awards is considered a key advantage of arbitration over court litigation.8 After the notorious demise to bring about a global enforcement convention between 1992 and 2011,9 the HCCH 2005 Choice of Court Convention marked a first step in improving enforcement of judgments. In the same vein as the New York Convention for arbitration agreements and arbitral awards, the Choice of Court Convention secures the validity of choice of court agreements and the enforcement of ensuing judgments.10 As yet, the latter Convention has only been ratified by a limited number of countries and the European Union (EU).11 However, it may be expected to gain more ratifications. Moreover, this Convention has paved the way for the HCCH 2019 Judgments Convention. Following these unsuccessful efforts to establish a worldwide double or mixed convention around the turn of the century, the enforcement project was reinvigorated in 2010.12 The work on a new convention was approached with great care to avoid earlier mistakes and to ensure compromises. An Expert Group was set up to explore the possibilities, and in 2012 it was decided to prepare a proposal for a single judgments convention with an agreed core of essential provisions and jurisdictional filters.13 After a series of meetings of the Working Group and reports by the Permanent Bureau, a Special Commission set out to work between 2016 and 2018. A first Preliminary Draft Convention dates from 2016,14 and further drafts were published in November 201715 and May 2018.16 Important for the present chapter are the discussions on the substantive scope of the Convention and the necessary compromises in this regard. As is also clear from the drafts mentioned, where part of the text is still bracketed, of particular concern were defamation and privacy, intellectual property and anti-trust (competition) matters. The HCCH 2019 Judgments 7 HCCH 1965 Service Convention; HCCH 1970 Evidence Convention. 8 See, for instance, the Queen Mary University of London (QMUL) White & Case 2018 International Arbitration Survey: The Evolution of International Arbitration, 7. The enforceability of awards was the most often mentioned valuable characteristic of international arbitrations (64%). 9 See Ning Zhao, ch 15 in this volume. See also, among others, RA Brand, ‘Concepts Consensus and the Status Quo Zone: Getting to “Yes” on a Hague Jurisdiction and Judgments Convention’ in C Carmody, Y Iwasawa and S Rhodes (eds), Trilateral Perspectives on International Legal Issues: Conflict and Coherence (American Society of International Law 2003) 71–80. 10 See, among others, A Schulz, ‘The Hague Convention of 30 June 2005 on Choice of Court Agreements’ (2006) 2 Journal of Private International Law 243; P Beaumont, ‘Hague Choice of Court Agreements Convention 2005: Background, Negotiations, Analysis and Current Status’ (2009) 5 Journal of Private International Law 125; M Pertegás, ‘The Brussels I Regulation and the Hague Convention on Choice of Court Agreements’ (2010) 11 ERA Forum 19; XE Kramer and E Themeli, ‘The Party Autonomy Paradigm: European and Global Developments on Choice of Forum’ in V Lazić and S Stuij, Brussels Ibis Regulation: Changes and Challenges of the Renewed Procedural Scheme (Asser Press/Springer 2017). 11 The EU, minus Denmark, which does not take part in measures relating to the area of freedom, security and justice, is a member as a Regional Economic Integration Organisation (REIO) in the sense of Art 29 HCCH 2005 Choice of Court Convention. 12 Ning Zhao, ch 15, section II, in this volume; see also, P Beaumont, ‘The Revived Judgments Project in The Hague’ (2014) 4 Nederlands Internationaal Privaatrecht 532, referring in this context to the HCCH Judgments Project in three phases. 13 HCCH, Council on General Affairs and Policy (17–20 April 2012), Conclusions and Recommendations, nos 16–19. 14 HCCH, 2016 Preliminary Draft Convention (text Working Document No 76 E revised). 15 HCCH, Special Commission on the Recognition and Enforcement of Foreign Judgments (13–17 November 2017) (November 2017 Draft Convention). 16 HCCH, Special Commission on the Recognition and Enforcement of Foreign Judgments (24–29 May 2018), 2018 Draft Convention.

Scope of Application  5 Convention unfortunately fully excludes defamation, privacy and intellectual property, while partially excluding anti-trust (competition) matters.17 This chapter will discuss the challenges and necessary compromises, and assesses the chances this new instrument offers to transnational court litigation and global judicial cooperation. Following the accession of the EU and the ratification of Ukraine on 29 August 2022, the Convention will enter into force on 1 September 2023, and it is hoped that the number of signatories will increase.18 First, an outline of the scope and nature of the Convention will be provided (section II). The core of the chapter will be dedicated to the substantive scope and excluded matters, considering the challenges and compromises (sections III and IV). Next, the territorial scope and delineation with other instruments will be briefly discussed (section V). Lastly, an outlook on the chances this new convention offers will be provided (section VI).

II.  Outline of the Convention and Non-Exclusive Character A.  Outline and Scope According to its Preamble, the goal of the HCCH 2019 Judgments Convention is to promote effective access to justice and to facilitate trade and investment and mobility. It should offer greater predictability and certainty to the global circulation of judgments. The Convention has a straightforward set up. It consists of four chapters, dedicated to the scope (Articles 1–3), the recognition and enforcement (Articles 4–15), general clauses (Articles 16–23) and final clauses (Articles 24–32). The two key provisions on the scope are laid down in Articles 1 and 2. Article 1 broadly demarcates the substantive and territorial scope, while Article 2 contains an extensive list of matters that are excluded from the substantive scope. A few definitions, including what is to be understood by a ‘judgment’, are provided in Article 3. Other provisions that further define the scope and are relevant for the purpose of this chapter include Article 15 (non-exclusive nature),19 Articles 18 and 19 (declarations by States),20 and Article 23 (relationship with other instruments).21 The Convention applies to the recognition and enforcement of judgments in civil or commercial matters (Article 1(1)). For the purpose of the recognition and enforcement the Convention includes jurisdictional filters,22 but the scope is limited to the recognition and enforcement of judgments. Article 1(1) states that the substantive scope does not, in particular, extend to revenue, customs and administrative matters. This addition, that is not included in the HCCH 2005 Choice of Court Convention, is apparently inspired by Article 1 Brussels Ibis Regulation, apart from not explicitly excluding liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). In section III.A the concept of civil and commercial matters will be further explored. Article 3 defines what is to be understood by ‘judgment’.23 It means any decision on the merits given by a court, whatever that decision may be called, including a decree or order, as well as 17 Art 2(1)(m) and (p) HCCH 2019 Judgments Convention. 18 Council Decision (EU) 2022/1206 of 12 July 2022 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters [2022] OJ L187/1. 19 See further, section II.B. 20 See sections III.B.i and IV.D. 21 See section V.B. 22 See Art 5 HCCH 2019 Judgments Convention. 23 For an in-depth analysis, see Wolfgang Hau, ch 2 in this volume.

6  Xandra Kramer orders on procedural costs and expenses related to a claim covered by the Convention. An interim measure of protection is not considered a judgment, regardless of the subject matter. This definition is derived from Article 4 of the HCCH 2005 Choice of Court Convention. A matter that was discussed by the Special Commission, but has not been resolved, is whether it includes pecuniary penalties.24 This question will not be further addressed in the present chapter.25 The territorial scope is laid down in Article 1(2). As is common to conventions dealing with the recognition and enforcement of judgments, this Convention is based on reciprocity. It applies to the recognition and enforcement in a Contracting State of a judgment rendered by a court of another Contracting State, as is also clear from Article 4(1). Also relevant for the scope is Article 23 on the relationship with other conventions. The territorial scope and relationship with other conventions will be further explored in section V.

B.  Non-Exclusivity and favor recognitionis A key issue relating to the scope of the Convention is its non-exclusivity. According to Article 15, this Convention does not prevent the recognition or enforcement of judgments under national law of the State where enforcement is sought. This rule is based on the favor recognitionis principle and enables a more favourable national rule on the recognition and enforcement of judgments to be applied in a particular case. The Convention thus only sets minimum standards for the recognition and enforcement of judgments.26 This provision is clearly inspired by Article VII of the New York Convention which contains a similar, though more liberal, favor principle. The Brussels Ibis Regulation being an EU-specific instrument does not contain an explicit rule in this regard and is considered mandatory. However, that instrument provides notably liberal rules for an automatic enforcement of judgments, only enabling narrow grounds for refusal in the enforcement stage, which would make the possibility to have recourse to such principle of little practical relevance. In a case brought to the European Court of Justice where a special convention – the CMR Convention – took precedence pursuant to the priority rules of the Regulation, the Court made the application of that Convention subject to it being at least as favourable as those of the Brussels Regulation, referring to the favor executionis principle.27 This indicates that in fact the Brussels Ibis Regulation is considered to be the favourable regime. The Explanatory Report clarifies that a party may resort to national law ‘as a whole’ or may select the more favourable provision from each of the systems.28 A more favourable national provision may for instance enable more flexible rules as regards the jurisdiction of the court that rendered the decision than the jurisdictional filters of Article 5 of the Convention offer. There is one important exception to the non-exclusivity rule. Article 15 mentions specifically that this rule is subject to Article 6.29 This Article provides – by way of exception to the permissive grounds of jurisdiction under Article 5 – that a judgment regarding rights in rem in immovable property shall be recognised and enforced if and only if the property is situated in the State of origin. In this case, a national provision that does not contain a similar strict 24 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 34. See also, F Garcimartin, ‘The Judgments Convention: Some Open Questions’ (2020) 67 Netherlands International Law Review 19, 21–25. 25 On this matter see Wolfgang Hau, ch 2, section II, in this volume. 26 Garcimartín and Saumier, Explanatory Report (n 24) para 326. 27 CJEU, C-533/08, ECLI:EU:C:2010:243 (TNT Express Nederland BV v AXA Versicherung AG). 28 Garcimartín and Saumier, Explanatory Report (n 24) para 326. 29 On this issue, see Pietro Franzina, ch 3, section II.A and section I.B.v, in this volume.

Scope of Application  7 exclusive jurisdiction rule for rights in rem in immovable property as a requirement for enforcement, cannot be invoked. The exclusive status of Article 6 is also clear from other provisions, notably from Article 23 dealing with the relationship between the Judgments Convention and other international instruments. This limitation to the non-exclusivity rule has been criticised.30 The Explanatory Report is very brief on this provision. In particular, the limitation to a more favourable national law rather than generally referring to a more favourable system, including conventions, as Article VII of the New York Convention does, seems striking. It should be noted, however, that Article 23 also gives leeway to the application of international instruments, including when they are more favourable. This provision will be further discussed in section V.B.

III.  Substantive Scope: Challenges The success of any convention to a large extent depends on its scope. For the Judgments Conventions it is clear that in order to reach consensus a trade-off was necessary resulting in the exclusion of certain matters. This section discusses the central notion of ‘civil or commercial matters’ (Article 1) and outlines the excluded matters and challenges in this regard (Article 2) before elaborating on the most controversial matters in the next section (IV).

A.  Civil and Commercial Matters As set out in the previous section, the Convention generally applies to the recognition and enforcement of judgments in civil or commercial matters, in accordance with Article 1. The notion ‘civil or commercial matters’ also appears in a range of other conventions and European instruments, including the HCCH 2005 Choice of Court Convention,31 and the HCCH 1965 Service and HCCH 1970 Evidence Conventions.32 Unlike the Choice of Court Convention, the Judgments Convention explicitly excludes, in particular, revenue, customs and administrative matters. The purpose of these non-exhaustive exclusions is to demarcate private and public law matters also in States where this distinction is less pronounced.33 This paragraph is apparently inspired by Article 1 of the Brussels Ibis Regulation, apart from not also explicitly mentioning the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). The concept of civil or commercial matter is a uniform concept that should be interpreted in line with Article 20. According to this provision, in the interpretation of the Convention the international character and need to promote uniform application has to be considered.34 It is also

30 See, in particular, C Kessedjian, ‘Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?’ (2020) 1 Nederlands Internationaal Privaatrecht 19, 25–26. The author sees no ground for the exclusivity of Art 6 relating to rights in rem in immovable property and generally criticises the limitation of the favor principle to a more favourable national law. 31 Art 1(1) HCCH 2005 Choice of Court Convention. 32 Art 1(1) HCCH 1965 Service Convention; and HCCH 1970 Evidence Convention. 33 Garcimartín and Saumier, Explanatory Report (n 24) para 34. It is not intended as a deviation from the HCCH 2005 Choice of Court Convention. 34 See, in this regard, J Ribeiro-Bidaoui, ‘The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations’ (2020) 67 Netherlands International Law Review 139.

8  Xandra Kramer important that the term is interpreted consistently across the various HCCH Conventions.35 The interpretation of what is to be regarded a civil or commercial matter has resulted in extensive case law by the European Court of Justice under the Brussels regime. While evidently not binding for the present Convention, this case law may provide guidance.36 The Explanatory Report stresses that whether a judgment relates to a civil or commercial matter has to be based on the nature of the claim or action.37 The nature of the court that rendered the judgment is not relevant. For instance, civil claims for damage brought in a criminal court will not disqualify the case as a civil matter. This was also held by the European Court of Justice in relation to the Brussels Ibis Regulation.38 Furthermore, the nature of the parties is not decisive for the qualification. This is also expressed by Article 2(4), stating that that a judgment is not excluded from the scope of the Convention by the mere fact that a State, including a government, a governmental agency or any person acting for a State, was party to the proceedings. It is the nature of the claim that is decisive, meaning that if the State is not exercising sovereign power but acting on the same footing as a private person, the judgment is within the scope of the Convention.39 The Explanatory Report mentions three helpful criteria to decide whether the Convention applies: 1. The conduct upon which the claim is based is conduct in which a private person can engage. 2. The injury alleged is an injury which can be sustained by a private person. 3. The relief requested is of a type available to private persons seeking a remedy for the same injury as the result of the same conduct.40 To secure State immunity, Article 2(5) provides that nothing in this Convention shall affect privileges and immunities of States or of international organisations. This paragraph is not intended to define the scope of privileges and immunities, but is a nil-effect clause intended to prevent misinterpretation of Article 2(4) according to the Explanatory Report.41 It should be noted that Article 2(1) specifically excludes three matters that would involve State powers. These are activities of armed forces (sub n); law enforcement activities (sub o); and sovereign debt restructuring through unilateral State measures.42 These exclusions were added to avoid interpretation problems. In addition, the Convention enables excluding States and governmental agencies from the scope. Article 19 allows a State to declare that the Convention does not apply in a case where a judgment arises from proceedings to which a State or governmental agency is involved. This was included to meet concerns by some delegations expecting challenges in this regard and to fully secure the preservation of immunities. It is not intended for governments to exclude State enterprises, but only for State agencies that carry out public duties as a primary purpose.43 None of the signatories has made use of this possibility so far.

35 PA Nielsen, ‘The Hague 2019 Judgments Convention – from failure to success?’ (2020) 16 Journal of Private International Law 205, 210–11. 36 See, in this regard, also the comparison between provisions by M Wilderspin and L Vysoka, ‘The 2019 Hague Judgments Convention through European Lenses’ (2020) 1 Nederlands Internationaal Privaatrecht 34, 36–37. 37 Garcimartín and Saumier, Explanatory Report (n 24) para 28. 38 CJEU, C-523/14, ECLI:EU:C:2015:722 (Aertssen). 39 See under the Brussels Ibis Regulation to this effect, among others, CJEU, C-135/15, ECLI:EU:C:2016:774 (Nikiforidis). 40 Garcimartín and Saumier, Explanatory Report (n 24) para 83. 41 ibid, para 86. 42 See P Beaumont, ‘Judgments Convention: Application to Governments’ (2020) 67 Netherlands International Law Review 121, 128–33. 43 ibid, 133–36.

Scope of Application  9

B.  Excluded Matters and Discussions i.  Outline of Excluded Subject Matters The broad central scope rule encompassing civil and commercial matters is significantly limited by Article 2 of the Convention. Some of the key discussions when establishing the Convention evolved around the matters to be excluded in order to reach an agreement. Article 2(1) lists no fewer than 17 excluded matters. The HCCH 2005 Choice of Court Convention excludes a similar number of matters.44 However, a few of these are inherent to limitations to party autonomy, including for employment and consumer contracts as well as rights in rem in immovable property, the validity, nullity, or dissolution of legal persons, and the validity of intellectual property rights. By way of comparison, the Brussels Ibis Regulation enumerates six excluded matters, primarily family matters and insolvency, which are mostly regulated in other, specific EU Regulations.45 According to the Explanatory Report, the rationale of the exclusions is threefold.46 The first category of exclusions are matters that are governed by other instruments. These exclusions are largely in line with those of the Brussels regime and the Choice of Court Convention, particularly those laid down in Article 2(1)(a)–(e). These relate to the status and legal capacity of natural persons, maintenance obligations, other family law matters, including matrimonial property regimes, wills and succession, and insolvency. Also a number of other matters fall into this category, as either being covered by other conventions, very specific matters or subject to exclusive rules. These are the carriage of passengers and goods (sub f), marine pollution and limitation of liability for marine pollution (sub (g), liability for nuclear damage (sub h), the validity, nullity or dissolution of legal persons or associations (sub i) and entries in public registers (sub j).47 The second group of exclusions are those that are of a particular sensitive nature. The Explanatory Report does not mention which ones these are, but it is clear from the earlier drafts and negotiations that these include defamation (sub k), privacy (sub l), intellectual property (sub m), and anti-trust (sub p). The third category encompasses excluded matters which flow from the general scope of the Convention but are specifically mentioned to avoid uncertainty in the interpretation. These are the exceptions related to State activities which cannot be considered a civil or commercial matter within the meaning of Article 1 (sub n, o and q), as mentioned above.48 According to Article 2(2), these exclusions do not apply where the matter arose merely as a preliminary issue and was not the object of the proceedings. Such matters can in particular arise by way of defence, and in such case the resulting judgment is not excluded from the scope of Convention. For instance, if a matter relating to the validity of a legal person or the capacity of a natural person (sub i) arises in a contractual matter only by way of preliminary issue, the judgment will for this reason not be excluded from the scope. A similar provision is included in the HCCH 2005 Choice of Court Convention. The Brussels Ibis Regulation does not contain such provision but the same principle has been adopted by the European Court of Justice.49 This provision of the Judgments Convention should be read together with Article 8 dealing with the refusal of recognition and enforcement of preliminary matters excluded by the Convention. According 44 Art 2(1) and (2) HCCH 2005 Choice of Court Convention. It even lists 18 excluded matters. 45 Art 1(2) Brussels Ibis Regulation. 46 Garcimartín and Saumier, Explanatory Report (n 24) para 44. 47 See also, Nielsen (n 35) 213. 48 Section III.A. These include activities of armed forces (sub n), law enforcement activities (sub o) and sovereign debt restructuring through unilateral State measures. 49 See, eg, CJEU, C-190/89, ECLI:EU:C:1991:319 (Marc Rich & Co AG v Società Italiana Impianti PA); M Illmer, ‘Article 2, para 2.25’ in A Dickinson and E Lein (eds), The Brussels I Regulation Recast (Oxford University Press 2015).

10  Xandra Kramer to Article 8, a ruling on a preliminary matter excluded from the scope shall not be recognised and enforced. In addition, recognition and enforcement of a judgment may be refused if, and to the extent that, it was based on a ruling on a matter excluded from the Convention. In addition to the excluded matters listed in the first paragraph, Article 2(3) contains a separate provision to exclude arbitration and related proceedings.50 It excludes arbitration matters categorically, also if it concerns for instance a court decision concerning the validity of an arbitration clause or the recognition of an arbitral award.51 Probably mindful of the intricacies of the arbitration exclusion in the Brussels Ibis Regulation,52 it intends to fully ensure that there is no interference with arbitration. Only when the arbitration clause was not invoked and an inter partes judgment on the merits was given will the judgment not be excluded from the scope of the Convention.53

ii.  Comparison with the Choice of Court Convention and Discussions The matters excluded from the scope of the Judgments Convention to a great extent run parallel to those of the Choice of Court Convention. While the Judgments Convention provided a new chance to discuss a number of controversial topics, including intellectual property and anti-trust, similar compromises had to be made, though anti-trust matters are not fully excluded. Despite the necessary compromises, the scope of the Judgments Convention is significantly broader than the Choice of Court Convention, as it clearly moves beyond the commercial area. A first important difference between the two is that employment and consumer matters are included in the Judgments Convention, while explicitly excluded by Article 2(1) of the Choice of Court Convention. The exclusion from the latter is imposed by the limitations to party autonomy and the existence of special rules or dedicated courts for these types of disputes. To secure the protection of weaker parties at the enforcement stage, the Judgments Convention contains a special jurisdictional filter.54 Article 5(2) in effect excludes a choice of court agreement as a jurisdictional basis for the court of origin as well as other grounds of jurisdiction that are generally considered ‘exorbitant’ for weaker party contracts. While these rules eliminate or limit certain grounds of jurisdiction, they do not fully align with the protection offered by the jurisdiction and enforcement rules of the Brussels Ibis Regulation.55 In addition, for insurance contracts a similar rule to protect policyholders, insurance and beneficiaries is wholly lacking in the Convention.56 Also in other respects the scope of the Judgments Convention is broader. Unlike the Choice of Court Convention, the Judgments Convention includes claims for personal injury,57 tort and delict claims for tangible property,58 and rights in rem in and tenancies of immovable property.59

50 On this issue, see further, José Angelo Estrella Faria, ch 16, section V, in this volume. 51 Garcimartín and Saumier, Explanatory Report (n 24) para 78. 52 See, most recently, CJEU, ECLI:EU:C:2022:488 (London Steamship Owners). 53 Garcimartín and Saumier, Explanatory Report (n 24) para 78. See also, Kessedjian (n 30) 25–26. 54 See, specifically for consumer protection, N de Araujo and M de Nardi, ‘Consumer Protection Under the HCCH 2019 Judgments Convention’ (2020) 67 Netherlands International Law Review 67. 55 Art 45(1)(e)(i) Brussels Ibis Regulation. 56 This may invoke Art 18 on the basis of which a declaration to exclude certain matters is permitted. See further, section IV.D. 57 Art 2(2)(j) HCCH 2005 Choice of Court Convention excludes claims for personal injury brought by or on behalf of natural persons. 58 Art 2(2)(k) HCCH 2005 Choice of Court Convention excludes tort or delict claims for damage to tangible property that do not arise from a contractual relationship. 59 Art 2(2)(l) HCCH 2005 Choice of Court Convention excludes rights in rem in immovable property, and tenancies of immovable property.

Scope of Application  11 While the focus of the Choice of Court Convention is on commercial disputes for which party autonomy is widely accepted, there is no need to exclude judgments regarding personal injury, tort claims and immovable property from the present Convention. The inclusion of these matters significantly broadens the scope of the Judgments Convention. A number of specific personal injury cases are, however, excluded, notably if these arise from liability for nuclear damage (Article 2(1)(h)), defamation (Article 2(1)(k)), or the violation of privacy (Article 2(1)(l)). Lastly, noteworthy is the more restrictive exclusion of marine pollution and related matters (Article 2(1)(g)).60 First, the Choice of Court Convention excludes marine pollution entirely,61 while the Judgments Convention only excludes three specific types of marine pollution. These are transboundary marine pollution, marine pollution in areas beyond national jurisdiction, and ship-source marine pollution. Second, emergency towage and salvage are not excluded from the Judgments Convention. In earlier drafts and in line with the Choice of Court Convention, marine pollution, and emergency towage and salvage were excluded, but this was reconsidered at a later stage of the negotiations.62 As to towage and salvage, it was concluded that none of the existing special conventions deals with the recognition and enforcement of judgments.63 For marine pollution, where several special conventions provide exclusive jurisdiction rules meriting exclusion from the HCCH 2005 Choice of Court Convention,64 gaps exist in the framework for recognition and enforcement. The refined demarcation in Article 2(1)(g) of the Judgments Convention aims to fill these. The most controversial topics in relation to the scope of the Convention were defamation, privacy, intellectual property and anti-trust (competition) matters. In the preliminary draft of 2016, only defamation was excluded as a notably sensitive matter.65 However, privacy issues also turned out to be a matter of concern, and these were excluded as well. The question of how far intellectual property should be included was extensively discussed, and different options have been considered. This matter proved to be too challenging, considering its economic importance and existence of special instruments, eventually leading to a full exclusion. Similar discussions took place concerning anti-trust matters. For these it turned out to be viable to reach a compromise resulting in a partial exclusion only. These matters will be further discussed in the following section.

IV.  Specific Excluded Matters: Compromises To facilitate the adoption of the Judgments Convention compromises regarding the substantive scope of the Convention seemed pivotal. This section discusses the exclusions for defamation, privacy, intellectual property and anti-trust (competition) matters, laid down in Article 2(1), as well as the declaration relating to specific matters in accordance with Article 18 of the Convention.

60 See also, A Bonomi and C Mariottini, ‘(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention’ (2018/19) 20 Yearbook of Private International Law 537, 542–43. 61 See Art 2(2)(g) HCCH 2005 Choice of Court Convention. 62 Note on reconsidering ‘marine pollution and emergency towage and salvage’ within the scope of the draft Convention on the recognition and enforcement of foreign judgments in civil or commercial matters, Prel Doc No 12 of June 2019. 63 ibid, No 76. 64 See, eg, Art IX International Convention on Civil Liability for Oil Pollution (Civil Liability Convention). 65 2016 Preliminary Draft Convention (text Working Document No 76 E revised), Art 2(1)(k).

12  Xandra Kramer

A.  Defamation and Privacy Defamation and privacy issues are fully excluded from the scope of the Convention in Article 2(l)(k) and (l). As mentioned above, defamation was already envisaged to be excluded from the scope in the 2016 preliminary draft of the Convention. Defamation involves the freedom of expression which is generally considered to be a constitutional right. The extent of the limits to the freedom of expression and how it is balanced against other rights in a defamation case, including privacy, differs considerably per country.66 The exclusion covers defamation, including libel and slander, involving both natural and legal persons and extends to any type and means of public communication.67 In an online context, defamation by definition involves cross-border aspects, and is a notoriously litigious matter. Also in the EU context, regulating defamation has proved difficult. While it is covered by the Brussels Ibis Regulation, the Rome II Regulation on the applicable law broadly excludes non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.68 The exclusion of defamation and of privacy from the scope of the Judgments Convention was discussed more extensively by the Special Commission.69 The EU delegation proposed to extend the exclusion of defamation to privacy, by adding ‘and privacy’ to sub (k). Defamation and privacy are closely connected and not clearly distinguished in all countries, but it was understood that privacy relates to the dissemination of truthful information, whereas defamation concerns the dissemination of some falsehood.70 In the 2017 Draft Convention the exclusion of defamation was retained while ‘privacy/unauthorised public disclosure of information relating to private life’ was inserted as a separate category (sub l) in brackets and scheduled for further consultation.71 In the 2018 Draft, sub (l) was rephrased to ‘privacy [,except where the proceedings were brought for breach of contract between the parties];]’. This would have limited the exclusion to noncontractual invasions of privacy. Eventually, it was decided to fully exclude privacy. Apart from requiring balancing fundamental rights and diverging views in this regard, the rapid development of technology has also played a role in this.72 As the scope and a definition differs greatly for each country, the Convention does not attempt to define the concept of privacy.73 The Explanatory Report underlines that – as for defamation – the exclusion applies to the disclosure of information in any form, including, text, pictures, audio or video recordings.74 It involves the unauthorised public disclosure of information relating to private life, and is – unlike defamation – limited to natural persons. It was agreed that it does not extend to data protection.75

66 CM Mariottini, ‘The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments’ (2017/18) 19 Yearbook of Private International Law 475, 478–80. 67 Garcimartín and Saumier, Explanatory Report (n 24) para 60. 68 Art 1(2)(g) Rome II Regulation. 69 C North, ‘Note on the possible exclusion of privacy matters from the Convention as reflected in Article 2(1)(k) of the February 2017 draft Convention’, Prel Doc No 8 of November 2017. 70 ibid, para 2. 71 On the legislative process, see C North, ‘The Exclusion of Privacy Matters from the Judgments Convention’ (2020) 67 Netherlands International Law Review 33, 37–38. 72 ibid, 39–40. 73 Garcimartín and Saumier, Explanatory Report (n 24) para 61. 74 ibid, para 62. 75 ibid, para 63.

Scope of Application  13 The difficulties in establishing a binding international framework for defamation and privacy has been picked up by several associations. The Institute de Droit International (IDI) adopted a Resolution on Internet and the Infringement of Privacy in August 2019.76 This Resolution aims to contribute to reaching international consensus.77 It provides rules for international jurisdiction and the applicable law. In its Article 9 it foresees that if a judgment has been rendered applying the designated law by a court having jurisdiction under these rules, it will be enforceable under the same conditions set out in the HCCH 2019 Judgments Convention. Furthermore, the International Law Association (ILA) has been working on privacy and private international law for a number of years. At the 2022 Lisbon conference, the Lisbon Guidelines on Privacy were formally adopted.78 The ILA Guidelines provide a broad framework for jurisdiction, the applicable law and the recognition and enforcement of judgments.79 These initiatives are useful guidelines for legal practice and may pave the way for binding regulations. Also at the EU level the work continues. The Study evaluating the Rome II Regulation, published in October 2021, recommends reconsidering the exclusion of violations of privacy and rights relating to personality, including defamation from the scope.80 Hopefully, the Commission will consider this recommendation and agreement can be reached on this matter. This topic has also received attention in the course of preparing an anti-SLAPPs instrument, for which a proposal was adopted by the European Commission in April 2022.81

B.  Intellectual Property Intellectual property matters are excluded from the Convention pursuant to Article 2(1)(m). While in the 2016 Preliminary Draft they were included and this version provided special rules for jurisdiction for that purpose, it became one of the most discussed topics by the Special Commission and for further negotiations.82 The Choice of Court Convention also partially excludes intellectual property rights; it excludes the validity or the infringement of intellectual property rights other than copyright and related rights, with an exception for contractual disputes.83 Due to the importance of intellectual property rights for the economy and international trade, efforts were geared towards the inclusion of intellectual property in the Judgments Convention. While there are a number of international conventions in the area of intellectual property, notably the TRIPS agreement, the enforcement of judgments at the global level is subject to national law.84

76 Institute de Droit International, Eighth Commission, ‘Internet and the Infringement of Privacy: Issues of Jurisdiction, Applicable Law and Enforcement of Foreign Judgments’ (31 August 2019). 77 See the Preamble: ‘Regretting the failure of other efforts to address these difficult conflicts at an international or regional level, but aspiring to contribute to the emergence of an international consensus towards that end’. 78 International Law Association, ‘Protection of Privacy in Private International and Procedural Law’ (Lisbon Guidelines on Privacy) 23 June 2022. 79 B Hess, J von Hein and CM Mariottini, ‘ILA Guidelines on the Protection of Privacy in Private International and Procedural Law (Lisbon Guidelines on Privacy) and Commentary Thereto’ (2022) MPILux Research Paper 4, available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=4155091. 80 Civil Consulting and British Institute of International and Comparative Law, ‘Study on the Rome II Regulation (EC) 864/2007 on the law applicable to non-contractual obligations, JUST/2019/JCOO_FW_CIVI_0167, 2021’, 26–28. 81 Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’) COM(2022) 177 final. 82 This subsection will highlight only some of the issues of this wider ranging and complex issue. A report of an informal working group on the matter (Prel Doc No 10 of April 2019) is not publicly available. 83 See Art 2(2)(n) and (o) HCCH 2005 Choice of Court Convention. 84 Intellectual property is covered unconditionally by the Brussels regime.

14  Xandra Kramer In the 2017 and 2018 Drafts of the Convention, ‘intellectual property and analogous matters’ appeared in brackets, as did the jurisdiction rules safeguarding the territoriality principle.85 Different scenarios were discussed, including a full exclusion or inclusion of intellectual property rights, or excluding only specific types of disputes (eg, on validity) or specific intellectual property rights.86 However, at the Diplomatic Session it became clear that it was not feasible to include intellectual property rights and it was decided to exclude these altogether. The exclusion broadly covers all matters that are internationally recognised as intellectual property rights (for instance under the Paris Convention87 and the TRIPS Agreement88), as well as – despite omitting ‘analogous matters’ in the text – those not internationally recognised.89 The latter category includes, according to the Explanatory Report, traditional knowledge, or cultural expressions and genetic resources.90 The exclusion extends to the validity of intellectual property rights and to judgments on infringement of those rights. Not evident from the text of the Convention is how far the exception applies to contractual obligations relating to intellectual property. The position is not crystal clear as the Explanatory Report also confirms. It states that the exclusion is ‘more nuanced’, and that it will depend on whether ‘the dispute is better characterised as contractual’. The characterisation of a contract is not unambiguous as the case law of the European Court of Justice regarding the Brussels Ibis also shows. Certain disputes regarding licence agreements, evolving around certain contractual terms (eg, royalties) or distribution contracts involving intellectual property (IP) licences would be covered by the Convention.91 However, other types of contractual cases involving IP are excluded. The Explanatory Report mentions a judgment on a standard essential patent (SEP) involving a fair, reasonable and non-discriminatory licensing obligation, or a dispute regarding IP ownership in an employment relationship.92 This exception may well lead to interpretation problems as there will be borderline cases. Also where the dispute only relates partly to the assessment of IP rights, but is primarily contractual, or has a mixed basis, the exception will not be easy to apply. It should be noted that if an IP issue arises only by way of a preliminary question Article 2(2) will come into operation.93 Apart from international conventions and EU regulations, there are a number of soft law instruments on intellectual property that offer perspectives. In 2011, the CLIP Principles on Conflict of Law and Intellectual Property were established.94 The ILA adopted the Kyoto Guidelines on Intellectual Property and Private International Law in 2020.95 Both sets of rules include useful definitions and deal with jurisdiction, the applicable law and recognition and

85 See L Lundstedt, ‘The Newly Adopted Hague Judgments Convention: A Missed Opportunity for Intellectual Property’ (2019) 50 International Review of Intellectual Property and Competition Law 933, 934–35. 86 F Garcimartín and G Saumier, Draft Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2018) para 55; N Zhao, ‘Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention’ (2020) 30 Swiss Review of International and European Law 345, 362. 87 Paris Convention for the Protection of Industrial Property 1883, as revised in 1979. 88 WTO, Agreement on Trade-Related Aspects of Intellectual Property Rights 1994. 89 The Explanatory Report in addition refers to the Berne Convention for the Protection of Literary and Artistic Works 1886, as amended in 1979 and the Convention establishing the World Intellectual Property Organization 1967, as amended in 1797 (WIPO). See Garcimartín and Saumier, Explanatory Report (n 24) para 64, fn 67. 90 Garcimartín and Saumier, Explanatory Report (n 24) para 64. 91 ibid, para 65. See also, Zhao, ‘Completing a long-awaited puzzle’ (n 86) 362. 92 Garcimartín and Saumier, Explanatory Report (n 24) para 65. 93 See section III.A. 94 Principles on Conflict of Laws in Intellectual Property, prepared by the European Max Planck Group on Conflict of Laws in Intellectual Property (CLIP) (1 December 2011). 95 ILA Resolution 6/2020, Guidelines on Intellectual Property and Private International Law (Kyoto Guidelines).

Scope of Application  15 enforcement. Moreover, at the Hague Conference the work also continues. At the Council on General Affairs and Policy (GCAP) meeting of 2020, the Permanent Bureau was invited to continue its cooperation with the World Intellectual Property Organization (WIPO) regarding issues of private international law and intellectual property.96 In 2022, the GCAP mandated the Permanent Bureau to continue monitoring developments on the intersection between IP and private international law. Concrete action for further regulation has not been undertaken so far.

C.  Anti-Trust (Competition) Matters Other matters that proved controversial are anti-trust or competition matters, leading to a partial exclusion. In the Choice of Court Convention, these are fully excluded.97 These matters are subject to private and public enforcement, involve public authorities and, consequently, party autonomy is limited. The exclusion does not appear in the 2016 Preliminary Draft or the 2017 Draft, and was only bracketed in the 2018 Draft, though already at the first meeting of the Special Commission it was indicated that further work on this matter was needed.98 For the purpose of the Twenty-Second Diplomatic Session, a note and report on anti-trust matters were prepared and an informal working group was formed.99 Following the negotiations, anti-trust (competition) matters have been partially excluded by way of compromise.100 Some delegations were in favour of including these matters, as anti-trust laws largely share the same objectives and the Convention only covers private actions and not public enforcement. Others favoured a full exclusion considering the strong public interest and the potential extraterritorial effect of national anti-trust laws, leading to a spillover effect. The term ‘anti-trust (competition) matters’ was adopted due to the different use of terminology; for instance, in the United States it is generally referred to as ‘anti-trust’, whereas in Europe the term ‘competition law’ is standard.101 Article 2(1)(p) provides a rather complex, but carefully drafted exclusion, which takes into account the different positions and territoriality concerns. These matters are excluded, except where the judgment is based on conduct that constitutes an anti-competitive agreement or concerted practice among actual or potential competitors to fix prices, make rigged bids, establish output restrictions or quotas, or divide markets by allocating customers, suppliers, territories or lines of commerce, and where such conduct and its effect both occurred in the State of origin.

Following the general scope of the Convention, only private enforcement actions – including those where public authorities act on behalf of private parties (eg, in collection actions) – are covered. The first part of the exception is inspired by the OECD 1998 Recommendation and aims to include in the scope those anti-trust (competition) matters that concern ‘hard core cartels’, where there appears to be global consensus.102 Following the OECD Recommendation on Hard 96 HCCH, Conclusions & Decisions, Adopted by CGAP, 3–6 March 2020, para 14. 97 Art 2(2)(h) HCCH 2005 Choice of Court Convention. 98 Prel Doc No 4, paras 9–10 and especially para 41 (December 2016). 99 HCCH, The possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention (prepared by C North), Prel Doc No 2 of December 2018, para 2. The report of the informal working group (Prel Doc No 6 of April 2019) is not publicly available. 100 Garcimartín and Saumier, Explanatory Report (n 24) para 69. See also, Zhao, ‘Completing a long-awaited puzzle’ (n 86) 364. 101 Garcimartín and Saumier, Explanatory Report (n 24) para 70. 102 ibid, para 71.

16  Xandra Kramer Core Cartels, the exclusion does not encompass ‘agreements, concerted practices, or arrangements that are reasonably related to the lawful realisation of cost-reducing or output-enhancing efficiencies’.103 These are consequently covered by the Judgments Convention. The Convention does not apply to other forms of anti-trust (competition) matters. The Explanatory Report refers in particular to prohibitions or restrictions on the unilateral conduct of market operators, for instance the use of a dominant market position, and prohibitions on mergers and acquisitions restricting competition.104 The last part of Article 2(1)(p) aims to secure that only those competitive activities mentioned are included where such conduct and its effect both occurred in the State of origin. This is to address the territorial concerns expressed by delegates and to secure that domestic anti-trust rules do not have extraterritorial effect.105 It should be noted that this criterion is only to determine whether or not the Convention applies. Further limitations to the circulation of judgments may result from the jurisdictional filters in Article 5 of the Convention.106

D.  Declarations Regarding Specific Matters Despite the significant number of exceptions to the substantive scope, Article 18 contains a general clause enabling declarations with respect to excluding other specific matters. This clause is identical to that of Article 21 of the HCCH 2005 Choice of Court Convention, and is no novelty in that regard. Article 18 provides that where a State has a strong interest in not applying this Convention to a specific matter, it may declare that it will not apply the Convention to that matter. Such a declaration should not be broader than necessary and the specific matter to be excluded must be clearly and precisely defined (Article 18(1)). The effect of such declaration is that the Convention will not apply (a) in the Contracting State that made the declaration, or (b) in other Contracting States where recognition and enforcement of a judgment is sought given by a court of that State regarding the excluded matter. This declaration must be notified to the depositary in accordance with Article 30. This provision aims to facilitate the ratification of the Convention by permitting States to exclude particular matters.107 To ensure that the exclusion is proportional the declaration should indicate a specific topic which can be further narrowed down, and be precisely defined. One can imagine that States would want a full exclusion of anti-trust matters, or to make exceptions for employment, consumer or insurance matters. The EU on its accession has made a declaration to exclude non-residential leases (tenancies) of immovable property situated in the EU.108 In relation to the Choice of Court Convention, the EU Member States109 and the United Kingdom have made declarations to exclude insurance contracts, apart from reinsurance contracts and those cases where the choice of court is in line with the requirements set out in the Brussels Ibis Regulation.110 Article 45(1)(e) of the Brussels Ibis Regulation contains a ground for refusal

103 Art 2(b) and (i) OECD 1998 Recommendation concerning Effective Action against Hard Core Cartels. 104 Garcimartín and Saumier, Explanatory Report (n 24) para 71. 105 ibid, para 72. 106 ibid, para 73. 107 ibid, para 336. The same reason was provided for the declaration under the Hague Choice of Court Convention; see T Hartley and M Dogauchi, Explanatory Report on the 2005 Hague Choice of Court Convention (HCCH 2005) para 236. 108 See also, Council Decision (EU) 2022/1206 (n 18) Art 4. 109 Including Denmark, which is not bound as an REIO in accordance with Art 29 HCCH 2005 Choice of Court Convention, but as an individual Contracting State. 110 Arts 15 and 16 Brussels I Regulation.

Scope of Application  17 in cases where the protective jurisdiction rules for weaker party contracts have been violated. For insurance contracts, such a safeguard is wholly lacking in the Judgments Convention. In relation to consumer and employment contracts, Article 5(2) does offer protection to consumers and employees, however, not in the same way the Brussels regime does.111 This would potentially invoke using the declaration for the EU as well as Contracting States to the Lugano Convention. However, as is mentioned above, the EU has only made a declaration to exclude non-residential leases (tenancies) of immovable property situated in the EU. The rationale of this exclusion is that the Brussels Ibis Regulation contains an exclusive jurisdiction rule for (long-term) tenancies of immovable property.112 Such rule is lacking in the Judgments Convention, as the exclusive jurisdiction rule in Article 6 is limited to rights in rem in immovable property.

V.  Territorial Scope and Delineation with Other Instruments A.  Reciprocity Requirement and Opt Out According to Article 1(2), the Judgments Convention applies to the recognition and enforcement of judgments in one Contracting State given by a court of another Contracting State. This reciprocity principle requires that for both countries the Convention has entered into force. The temporal scope is laid down in Article 16: the Convention will apply if it was in effect between the State of origin and the requested State at the time the proceedings were installed at the Member State of origin. This will trigger the obligation laid down in Article 4(1) requiring the recognition and enforcement of judgments rendered by a court of the State of origin in the requested State, subject to the jurisdictional filters (Articles 5 and 6) and the grounds for refusal (Article 7).113 However, there is an additional requirement to this traditional reciprocity requirement. According to Article 28(1), the Convention enters into force on the first day of the month following the expiration date during which declarations in accordance with Article 29(2) can be made. Article 29(2) provides for an ‘opt out’ possibility for Contracting States.114 A Contracting State may declare, within 12 months after the notification by the depository of the ratification, acceptance, approval or accession of another State, that this shall not have the effect of establishing relations between the two States. In other words, Contracting States have a one-year period to opt out from the rules vis-a-vis adhering Contracting States. In addition, in accordance with Article 29(3), new Contracting States can also, upon depositing their instrument of ratification, acceptance, approval or accession, notify the depositary that the Convention shall not have the effect of establishing relations with a certain Contracting State or States. This opt-out mechanism was put in place to deal with concerns about the (perceived) lack of due process in some countries.115 This system is somewhat remarkable and – once again – shows the amount of caution that was apparently considered necessary to facilitate the ratification of the Convention by States.

111 See also section III.B.i. 112 Art 22(1) Brussels Ibis Regulation. 113 See, on the jurisdictional filters, Pietro Franzina, ch 3, section IV, in this volume; and on the grounds for refusal, Marcos Dotta Salgueiro, ch 4 in this volume. 114 See João Ribeiro-Bidaoui and Cristina M Mariottini, ch 5, section II, in this volume. 115 Zhao, ‘Completing a long-awaited puzzle’ (n 86) 355.

18  Xandra Kramer

B.  Relationship with Other Instruments The applicability of the rules of the Convention between Contracting States may be affected by the existence of other conventions and regional instruments.116 Article 23 provides rules regarding the relationship with other international instruments. It deals with three different situations. First, Article 23(2) provides that the Convention shall not affect the application by a Contracting State of a treaty that was concluded before this Convention. This is the situation where another convention, binding the requested State, was concluded prior to 2 July 2019. This would for instance apply to Contracting States of the Lugano Convention.117 As the rules for recognition and enforcement differ, including those regarding protection of weaker parties, there could be a conflict between these two. In addition, the HCCH 2005 Choice of Court Convention would fall into this category, and a party can rely on that Convention. As the grounds for refusal under both Conventions are largely aligned and to be considered permitted and not mandated grounds for refusal, it is not likely that there will be an incompatibility between the two.118 Second, the situation addressed in Article 23(3) is where both the State of origin and the requested State are a party to another convention that is concluded after the Judgments Convention. In this case, the Judgments Convention shall not affect the application of the rules on recognition and enforcement of that other convention. Unlike paragraph 2, this rule is not based on the favor recognitionis principle.119 If for instance after the conclusion of the Judgments Convention a bilateral treaty between two Contracting States is concluded that imposes more stringent grounds for refusal, that treaty would prevail.120 A limitation to Article 23(3) is that the other treaty shall not affect the application of Article 6 – including an exclusive jurisdictional filter for rights in rem in immovable property situated in the State of origin – towards Contracting States that are not parties to that treaty. Third, Article 23(4) deals with instruments of an REIO that is a party to this Convention.121 As yet, this is only relevant for the EU. The EU instruments are not affected by the Judgments Convention if (a) they were adopted before this Convention or (b) the rules were adopted after this Convention, as far as they do not affect the obligations under Article 6 towards Contracting States that are not EU States. Article 23 gives ample leeway to the application of other conventions and EU instruments, which is in line with the desire to facilitate enforcement while not limiting Contracting States in applying other rules. Only paragraphs 3 and 4 are more forceful in securing that later treaties and EU instruments will not affect the application of the exclusive jurisdictional filter under Article 6 of this Convention.

116 See also, ‘Prospects for the World’, Part II of this volume. 117 While Art 23(2) does not require that the State of origin is also a Contracting State to that Convention, the Lugano Convention does. The Explanatory Report also mentions the example of only the requested State being a party to the 2018 Convention on International Settlement Agreements Resulting from Mediation; Garcimartín and Saumier, Explanatory Report (n 24) para 374. See further, Andreas Stein and Lenka Vysoka, ch 7, section II, in this volume. 118 Garcimartín and Saumier, Explanatory Report (n 24) para 376. Further on this issue, see Paul Beaumont, ch 6 in this volume. 119 Garcimartín and Saumier, Explanatory Report (n 24) para 379. 120 ibid, para 381. 121 See Art 26 on accession by REIOs.

Scope of Application  19

VI.  Concluding Remarks The establishment of the Judgments Convention is a hallmark for the global recognition and enforcement of judgments. The difficult road to establishing such global instrument has, however, also left its mark on the scope of the Convention. Compromises were necessary to avoid controversial topics and to promote the ratification of the Convention. Considering the reciprocity requirement, the success of the Convention depends to a great extent on the number of ratifications. Important challenges were posed by the topics to be excluded from the Convention. It generally applies to civil and commercial matters, but no less than 18 matters are explicitly excluded from the scope pursuant to Article 2. These in part include matters that are either the subject of other conventions or are closely related to State actions, but also a number of key civil and commercial matters are excluded. The most controversial are defamation, privacy, intellectual property and anti-trust (competition). While the first three are fully excluded from the scope, the latter are only partially covered by the Convention. In addition to this, Contracting States can further limit the substantive scope of the Convention. First, Article 18 enables Contracting States to make a declaration to exclude specific matters where a State has a strong interest in not applying the Convention.122 Second, in accordance with Article 19 States may declare that they shall not apply the Convention to judgments resulting from proceedings to which the State was a party. It goes without saying that if many States make use of these declarations, the effect of the Convention will be diminished. Another feature of the Convention is its non-exclusive character; pursuant to Article 15 domestic rules on recognition and enforcement may be applied if they are more favourable. As domestic rules may well be less restrictive, for instance as regards the jurisdictional filters,123 the practical application of the Convention may be reduced. However, this is not a weakness but rather a strength as the goal of the Convention is to promote enforcement and not to impose unnecessary restrictions. The same goes for the leeway given to other international instruments according to Article 23. This is different for the possibility to territorially restrict the scope of the Convention by excluding the effect towards a particular State or group of States. This optout possibility was put in place over due process concerns in some countries, which apparently cannot be sufficiently addressed by the public policy exception. While this apparent need may be a weakness, it is one that is intertwined with systemic problems in some State courts or the result of political issues. Enabling an opt out coupled with the possibility to withdraw such declaration at any time124 is probably a concession that had to be made. It may be expected that States will make scarce use of it. Despite the number of exclusions, possible declarations and inherent flaws, the Judgments Convention is an important step in invigorating global judicial cooperation. It provides chances for litigation for parties that do not want to or cannot make use of arbitration. Also in view of the increasing number of international commercial courts, offering more tailor-made procedures to business litigants in State courts,125 this new Convention is a much-needed addition to an international global dispute resolution framework. 122 The EU as a signatory REIO will make such declaration to exclude non-residential leases (tenancies) of immovable property situated in the EU, see section IV.D. 123 Art 6 HCCH 2019 Judgments Convention may not be set aside. 124 Art 29(4) HCCH 2019 Judgments Convention. 125 See, inter alia, XE Kramer and S Sorabji (eds), International Business Courts: A European and Global Perspective (Eleven International Publishing 2019); S Brekoulakis and G Dimitropoulos (eds), International Commercial Courts: The Future of Transnational Adjudication (Cambridge University Press 2022).

20

2 Judgments, Recognition, Enforcement WOLFGANG HAU*

I. Introduction The realisation of Tobias Asser’s dream of a free movement of judgments worldwide is a leitmotif of the Hague Conference.1 After previous attempts, especially after the HCCH 1971 Judgments Convention,2 were unfortunately not very successful, great expectations are being placed in the new Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.3 Article 4(1) proves to be its centrepiece: ‘A judgment given by a court of a Contracting State (State of origin) shall be recognised and enforced in another Contracting State (requested State) in accordance with the provisions of this Chapter’. This provision contains the three key concepts with which this chapter will deal: judgment, recognition and enforcement. In order to shed light on these concepts, one must first take a look at the objectives of the new Convention. Its Preamble identifies three of them: promoting effective access to justice for all; facilitating rule-based multilateral trade and investment and mobility; and greater predictability and certainty in relation to the global circulation of foreign judgments.4

II. Judgments A. Definition Almost verbatim with Article 4(1) of the HCCH 2005 Choice of Court Convention, the HCCH 2019 Judgments Convention provides in its Article 3(1)(b) a definition of what is meant by ‘judgment’: Any decision on the merits given by a court, whatever that decision may be called, including a decree or order, and a determination of costs or expenses of the proceedings by the court (including an officer of * Full Professor of German, International and Comparative Civil Procedure Law, University of Munich; Judge, Higher Regional Court of Munich. 1 R Garnett, ‘The Judgments Project: fulfilling Asser’s dream of free-flowing judgments’ in T John, R Gulati and B Köhler (eds), The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar 2020) 309. 2 Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. 3 Hereafter: the HCCH 2019 Judgments Convention or the Convention. 4 For a more detailed yet concise compilation of the objectives, see C Bernasconi in F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) 3: ‘The increasing movement of people, information, and assets, together with the growth in cross-border trade, commerce, and investment, has made this need

22  Wolfgang Hau the court), provided that the determination relates to a decision on the merits which may be recognised or enforced under this Convention. An interim measure of protection is not a judgment.5

This definition, which is obviously rather broad,6 is to be interpreted independently, as follows from Article 20. Some additional guidance can be derived from Article 4(3), according to which the judgment must be effective under the law of the State of origin but not necessarily final and conclusive (see below, section III.C.ii). In the following, the concept of judgment under the HCCH 2019 Judgments Convention will be examined in more detail. It is assumed here that the Convention applies to foreign judgments only, ie, judgments given by a court in another Contracting State, and only to judgments in civil and commercial matters (Article 1(1)) which are not excluded under Article 2.7

B.  Court Decision i.  Meaning of ‘Court’ Article 3(1)(b) of the HCCH 2019 Judgments Convention states that the decision must be ‘given by a court’. In principle, this is to be understood as ‘given by one or more judges’, as the activity of a (non-judicial) officer of the court is expressly intended to be only sufficient in relation to a mere determination of costs or expenses of the proceedings. Article 12(1)(d) and (3) also demonstrate that when the Convention refers to a court, it normally means and requires (one or more) judges. As long as the foreign judgment concerns a civil or commercial matter, it is irrelevant whether it was issued by a civil court or, for example, by a criminal court awarding damages to the victim of a crime.8 Moreover, it is even irrelevant for the concept of judgment whether the court actually had jurisdiction to decide under national law.9 This follows, on the one hand, from the broad wording of Article 3(1)(b) (‘given by a court’) and, on the other hand, from the prohibition of a review of the foreign judgment provided for in Article 4(2).

all the more apparent. These developments, amplified by the internet and new technologies, all require the support of an effective and efficient dispute resolution mechanism. In the absence of an effective mechanism for the global circulation of judgments to date, those engaged in cross-border activities have faced significant risks. Successful litigants have been deprived of rights and remedies, often forcing them to relitigate in another State, such as where the judgment debtor resides or has assets, simply in order to obtain relief to which they had already proven entitlement. Not only does this situation give rise to additional costs and delays, but successful litigants are faced with considerable uncertainty regarding the outcome of the new proceedings’. Furthermore, see D Goddard and P Beaumont, ‘Recognition and Enforcement of Judgments in Civil or Commercial Matters’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 407–09. 5 This definition is certainly more helpful than the one in Art 2 of the HCCH 1971 Judgments Convention: ‘This Convention shall apply to all decisions given by the courts of a Contracting State, irrespective of the name given by that State to the proceedings which gave rise to the decision or of the name given to the decision itself such as judgment, order or writ of execution’. 6 cf A Bonomi and C Mariottini, ‘(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention’ (2018/19) 20 Yearbook of Private International Law 537, 545. 7 For details, see Xandra Kramer, ch 1, section III, in this volume. 8 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 29. In this respect, s 2(1) of the Commonwealth Model Law on the Recognition and Enforcement of Foreign Judgments 2018 contains an express clarification. 9 Therefore, it is rather misleading that Garcimartín and Saumier’s Explanatory Report (n 8) para 29 emphasises that the Convention is applicable where a criminal court ‘had jurisdiction to hear the matter under its procedural law’. See H Jacobs, Das Haager Anerkennungs- und Vollstreckungsübereinkommen vom 2. Juli 2019: Eine systematische und ­rechtsvergleichende Untersuchung (Mohr Siebeck 2021) 138–39.

Judgments, Recognition, Enforcement  23 Unfortunately, the Convention gives no further indication of its intended meaning of a ‘court’. The proposal for a more precise definition of the concept, which was discussed during the negotiations, was not adopted.10 Nevertheless, the Explanatory Report suggests that the term should be interpreted autonomously, referring to ‘authorities or bodies that are part of the judicial branch or system of a State and which exercise judicial functions’.11 This is indeed a helpful starting point in most cases. In case of doubt, however, it seems to be unavoidable to resort to national law: the law of the State of origin (not the law of the requested State) has to define which bodies exercise judicial or quasi-judicial functions within its legal system and are thus to be treated as courts within the meaning of Article 3(1)(b). This approach is particularly relevant with regard to administrative authorities:12 although the HCCH 2019 Judgments Convention, unlike Article 19 of the HCCH 2007 Maintenance Convention,13 does not mention them, they could be included if national law confers judicial powers on them.14 It is supposed here that this can also apply to institutions in the field of alternative dispute resolution (ADR): to the extent that they are (exceptionally) empowered to issue binding decisions like a court,15 they may be covered by the Convention. It must be emphasised, however, that in any case this can only apply to State ADR institutions, as Article 2(3) clarifies that (non-State) arbitral tribunals are outside the Convention’s scope of application. One may consider whether international standards, especially with regard to judicial independence, as defined, for example, by the International Association of Judicial Independence and World Peace16 or as laid down in Article 6 of the European Convention on Human Rights, are to be understood as an autonomous requirement of the HCCH 2019 Judgments Convention for the concept of a court17 and thus also for the existence of a judgment as envisaged by Article 3(1)(b).18 Even if one is inclined to answer this question in the negative because 10 See Garcimartín and Saumier (n 8) para 101, referring to the Aide memoire of the Chair of the Special Commission (Special Commission on the Recognition and Enforcement of Foreign Judgments (16–24 February 2017)), para 21: ‘“court” means: (i) a tribunal belonging to the Judiciary of a Contracting State at any level, and (ii) any other permanent tribunal that, according to the law of a Contracting State, exercises jurisdictional functions on a particular subject matter, according to pre-established procedural rules, being independent and autonomous’. 11 Garcimartín and Saumier (n 8) para 102. 12 In this respect, Garcimartín and Saumier (n 8) para 103, consider the Convention inapplicable, but without explaining this further. In contrast, T Hartley and M Dogauchi, Explanatory Report on the 2005 Hague Choice of Court Convention (HCCH 2005) para 116, state that this Convention should also apply to decisions by patent offices exercising quasijudicial functions. This is noteworthy as the HCCH 2005 Choice of Court Convention (like the HCCH 2019 Judgments Convention) does not extend to patent litigation (Art 2(2)(n) and (o)). 13 Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. For a detailed discussion see A Borrás and J Degeling, Explanatory Report (HCCH 2013) paras 431–32. 14 It does not seem impossible that even enforcement authorities can be classified as courts in this broad sense if they are empowered under national law to issue enforcement titles. See the examples given by W Kennett, Civil Enforcement in a Comparative Perspective: A Public Management Challenge (Intersentia 2021) 27–28. 15 See, eg, the European Court of Justice (ECJ) description of the quasi-judicial powers of Swiss conciliation authorities in small-claims cases: Judgment of 20 December 2017, Case C-467/16, Brigitte Schlömp v Landratsamt Schwäbisch Hall, ECLI:EU:C:2017:993. 16 See, in particular, the Mount Scopus International Standards of Judicial Independence, approved 19 March 2008 (consolidated version of 2018), available at: www.jiwp.org/mt-scopus-standards-2007-curre. 17 This was emphasised in the definition of a court that was discussed, as mentioned above, during the preparatory work: ‘being independent and autonomous’. 18 Understood in this way, Art 3(1)(b) could be placed in the context of what is now usefully discussed under the heading of ‘trust management’. cf M Weller, ‘The HCCH 2019 Judgments Convention: New Trends in Trust Management?’ in C Benicke and S Huber (eds), National, International, Transnational: Harmonischer Dreiklang im Recht – Festschrift für Herbert Kronke (Gieseking 2020) 621–32, who points out that the concerns of some States, which fear that the Convention will oblige them to recognise and enforce judgments even from those States whose administration of justice they regard as problematic, are to be taken seriously. For a more detailed elaboration of the concept of trust management, see M Weller, ‘“Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?’ (2022) 423 Recueil des cours para 37 et seq.

24  Wolfgang Hau Article 3(1)(b) does not contain a reference in this regard,19 recognition and enforcement could be refused in problematic cases on the basis of Article 7(1)(c), since judicial independence is certainly one of the fundamental principles of procedural fairness.

ii.  Common Courts During the preparatory work on the HCCH 2019 Judgments Convention, there was intense debate on whether it should also cover judgments given by ‘common courts’, ie, courts to which two or more States have transferred judicial power.20 This question is not addressed in the final text of the Convention. It seems of little importance anyway, as common courts are most likely to operate in the field of intellectual property, which was excluded from the scope of the Convention (Article 2(1)(m)). Should the question ever arise in another civil or commercial matter, one can assume that the Convention shall also apply to common courts, given that they meet the definition of Article 3(1)(b).21 Against this background, it seems, a fortiori, natural to apply the Convention to a case where the judgment does not originate from a common court, but from a national court having applied a ‘common procedure’. For example, the fact that proceedings before a national court in the EU were conducted in accordance with the unified European Small Claims Procedure22 does not preclude recognition of the judgment under the Convention.

C.  Decision on the Merits i. Introduction The requirement of a ‘decision on the merits’ (décision sur le fond or Sachurteil) in Article 3(1)(b) means that there must be a court ruling on the subject matter of the dispute.23 In this respect, it does not matter whether the judgment was given against the defendant or, in the case of a dismissal of action on the merits, against the plaintiff (see below, section III.A).24 Unlike, for example, ALI/UNIDROIT Principle 23.2,25 the HCCH 2019 Judgments Convention does not require that a court decision on the merits, in order to be considered a judgment within the meaning of Article 3(1)(b), must be accompanied by a reasoned explanation of its essential

19 In this respect, the HCCH 2019 Judgments Convention differs from US law, according to which recognition and enforcement are excluded if the foreign judgment was rendered under a legal system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law. On the US concept of mandatory refusal of recognition based on systemic unfairness in the foreign jurisdiction, see Geneviève Saumier and Linda Silberman, ch 8, section III, in this volume; SP Baumgartner and C Whytock, ‘Enforcement of Judgments, Systematic Calibration, and the Global Law Market’ (2022) 23 Theoretical Inquiries in Law 119. 20 See H van Loon, ‘Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’ (2020) 38 Nederlands Internationaal Privaatrecht 4, 17–18, clarifying that the ECJ is not to be considered as a common court since the EU counts as a single Contracting State (cf Art 26(1) and (4)). 21 See Garcimartín and Saumier (n 8) para 103. 22 Regulation (EC) No 861/2007 of 11 July 2007 establishing a European Small Claims Procedure [2002] OJ L199/1. 23 The term ‘merits’ is also used in Art 4(2) (prohibition of a review of the merits of the foreign judgment) and Art 5(1)(f) (in the context of the court’s jurisdiction based on the defendant’s submission). 24 Garcimartín and Saumier (n 8) para 117. 25 ALI/UNIDROIT Principles of Transnational Civil Procedure as adopted and promulgated by the American Law Institute and UNIDROIT (2004).

Judgments, Recognition, Enforcement  25 factual, legal, and evidentiary basis.26 Furthermore, it is irrelevant whether the judgment was given in traditional court proceedings or in a collective or representative action.27

ii.  Procedural Decisions Conversely, it follows from Article 3(1)(b) that rulings on purely procedural issues (Prozessurteile) are not covered. This excludes, for example, decisions pronouncing the jurisdiction or the lack of jurisdiction of the court seised,28 but also preparatory court orders relating to the taking of evidence and orders dealing with matters of enforcement. However, the defendant’s obligation to provide information or to produce a document may be the subject of an independent action; in such a case, the judgment granting the action must be classified as being given on the merits.29 Exequatur decisions are also not recognised and enforced (‘exequatur sur exequatur ne vaut’);30 an exequatur decision must however be distinguished from a (principally enforceable) judgment given on the basis of a final judgment delivered in a third State.31 If a judgment contains severable rulings, only those given on the merits can be recognised and enforced under the Convention (cf Article 9).

iii.  Default Judgments Dealing with the requirement of a decision on the merits, Garcimartín and Saumier hold that there must be ‘some kind of contentious proceedings’. However, this statement seems to be somewhat misleading, as these authors themselves concede that the Convention also applies to default judgments,32 which undoubtedly follows from Article 12(1)(b). Another question is whether default judgments are covered even if they are entered or recorded by an officer of the court.33

26 However, the absence of any reasons given for the judgment may be relevant in connection with the public policy clause (Art 7(1)(c)). In the context of the Brussels I Regulation, see ECJ, Judgment of 6 September 2012, Case C-619/10, Trade Agency Ltd v Seramico Investments Ltd, ECLI:EU:C:2012:531: ‘the courts of the Member State in which enforcement is sought may refuse to enforce a judgment given in default of appearance which disposes of the substance of the dispute but which does not contain an assessment of the subject-matter or the basis of the action and which lacks any argument of its merits, only if it appears to the court, after an overall assessment of the proceedings and in the light of all the relevant circumstances, that that judgment is a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, on account of the impossibility of bringing an appropriate and effective appeal against it’. 27 Garcimartín and Saumier (n 8) para 95; K Takahashi and ZS Tang, ‘Collective Redress’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 435 et seq. For a comparative account of ­collective and representative redress, see O Chase et al (eds), Civil Litigation in Comparative Context, 2nd edn (West Academic Publishing 2017) 505 et seq. 28 In the context of the Brussels I Regulation, a different but highly questionable position was taken by the ECJ in its judgment of 15 November 2012, Case C-456/11, Gothaer Allgemeine Versicherung, ECLI:EU:C:2012:719, in which it held that the rules on enforcement also cover a judgment in which the court of a Member State declines jurisdiction on the basis of a jurisdiction clause. 29 For an example under German procedural law (Stufenklage, section 254 German Code of Civil Procedure), see Jacobs (n 9) 139. 30 Garcimartín and Saumier (n 8) para 95; Jacobs (n 9) 141. 31 On the enforceability of such a judgment under the Brussels Ibis Regulation see ECJ, Judgment of 7 April 2022, Case C-568/20, J v H Limited, ECLI:EU:C:2022:264. In some jurisdictions, it is not settled yet whether so-called ‘derivative judgments’ or ‘ricochet judgments’ can be enforced; cf Supreme Court of Canada in HMB Holdings Ltd v Antigua and Barbuda, 2021 SCC 44, paras 25–26. 32 Garcimartín and Saumier (n 8) para 95. C North, ‘The 2019 HCCH Judgments Convention: A Common Law Perspective’ (2020) 3 Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 202, 206, fn 45, notes that a default judgment is typically considered not as a decision on the merits but as a decision disposing of the merits. 33 This question is answered in the affirmative by Garcimartín and Saumier (n 8) para 95, fn 88; Jacobs (n 9) 138.

26  Wolfgang Hau This seems doubtful, since, as already mentioned, Article 3(1)(b) in principle presupposes a decision by a judge (see above, section II.B.i).

iv.  Payment Orders On the basis of its reasoning that a judgment within the meaning of Article 3(1)(b) of the HCCH 2019 Judgments Convention requires a contentious procedure, the Explanatory Report further concludes that ex parte orders for payment concerning uncontested pecuniary claims do not meet the definition of a judgment.34 This seems rather questionable, as the Convention requires a decision by the court on the merits, but not necessarily an actual examination of those. In most cases, there is not much difference between the two positions, as Garcimartín and Saumier concede that a judgment exists if the debtor against whom the court order has been issued does not contest it and the court then declares the order enforceable. Therefore, for example, an enforceable collection order under German law (Vollstreckungsbescheid) according to section 699 of the German Code of Civil Procedure or a European payment order35 would clearly fall within the Convention’s scope of application. According to the view taken here, however, it is also a judgment within the meaning of Article 3(1)(b) if under national law the court can issue a payment order that becomes enforceable without any further court declaration or confirmation, should the debtor fail to oppose in due time.

v.  Non-Monetary Judgments In principle, it seems clear that the HCCH 2019 Judgments Convention covers not only money judgments, but non-monetary judgments.36 This applies to judgments imposing an obligation on the defendant to perform a specific act other than the payment of money or to refrain from performing a specific act (Leistungsurteile; jugement condamnatoire). It has been pointed out that such forms of relief are becoming increasingly important because they make it possible to protect the growing portion of wealth represented by intangible property.37 Furthermore, the Convention is applicable to declaratory judgments (Feststellungsurteile; jugement déclaratif)38 and also to judgments establishing, modifying or dissolving a legal relationship (Gestaltungsurteile; jugement constitutif de droit).39 An example of the former is a judgment declaring that one of the parties is or is not the owner of a certain chattel, an example of the latter is a judgment dissolving a contract or a company. Such judgments are not enforceable by their nature, but may nevertheless be recognised. A Contracting State that, in its domestic law, does not provide for the

34 Garcimartín and Saumier (n 8) para 95. 35 Regulation (EC) No 1896/2006 of 12 December 2006 creating a European order for payment procedure [2006] OJ L39/1. 36 See Garcimartín and Saumier (n 8) para 96; Jacobs (n 9) 142–43; A Yekini, The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective (Hart Publishing 2021) 231–32; K Sachs and M Weiler, ‘A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention’ in RA Schütze, TR Klötzel and M Gebauer (eds), Usus atque scientia: Festschrift für Roderich C Thümmel (De Gruyter 2020) 766. See also North (n 32) 202–206, noting that the equal treatment of money and nonmonetary judgments is a remarkable difference between the Convention and common law regimes. Note, however, the model provisions for the registration of non-monetary judgments contained in sections 15 and 16 of the Commonwealth Model Law on the Recognition and Enforcement of Foreign Judgments 2018; see Yekini, ibid, 101–03. 37 Goddard and Beaumont (n 4) 411. 38 cf Garcimartín and Saumier (n 8) para 113. 39 For such types of judgments on the merits, see, for example, W Hau, ‘The Law of Civil Procedure’ in J Zekoll and G Wagner (eds), Introduction to German Law, 3rd edn (Wolters Kluwer 2019) 490–91.

Judgments, Recognition, Enforcement  27 enforcement of non-monetary judgments may declare in accordance with Article 18(1) that it will not apply the Convention to such matters.40 The applicability of the Convention to non-monetary judgments raises the follow-up question of whether it also concerns the enforcement of pecuniary penalties sanctioning non-compliance with such judgments (astreinte; Zwangs- und Ordnungsgeld). This problem was discussed during the negotiations; however, no answer has been included in the final text.41 It is suggested here that the Convention should apply only where national law provides that it is the court itself (ie, not an enforcement authority) that determines the amount of the penalty and where that penalty is payable to the judgment creditor (ie, not to the State).42 However, recognition and enforcement in accordance with national law or other international treaties remains possible (cf Article 15).

vi.  Decisions on Costs With regard to a determination of costs or expenses of the proceedings, Article 3(1)(b) shows that such a decision, although not given on the merits, is nevertheless covered by the Convention, but only if it relates to a judgment on the merits falling within the scope of application. Furthermore, it follows from Article 14(2) that the Convention also applies to a decision on costs given against the judgment creditor in the course of his or her application to enforce the judgment (see below, section IV.D). In any event, it is irrelevant whether the determination of costs is contained in the judgment on the merits or pronounced separately. Article 3(1)(b) renders the enforceability of the costs decision conditional on the judgment on the merits being capable of recognition. Even then, it seems conceivable that a ground for refusal specifically against the recognition of the costs decision arises from Article 7.43

D.  Exclusion of Interim Measures of Protection The ALI/UNIDROIT Principles of Transnational Civil Procedure provide that a ‘provisional remedy’ issued abroad must be recognised in the same terms as a foreign final judgment (Principle 30), but albeit do not address in detail the problems involved. The case law of the European Court of Justice (ECJ) on the Brussels Convention and the Brussels I Regulation as well as the complex provision in Article 2(a) of the Brussels Ibis Regulation44 show that these problems 40 cf Garcimartín and Saumier (n 8) para 337, stating that Art 18(1) allows for a declaration of non-application in respect of a particular type of remedy. For a different position, see Jacobs (n 9) 143–44: Since Art 18(1) builds on Art 2, it only allows for the exclusion of certain subject matters. For the problem of adaptation of unknown remedies, see below, section III.D.iii. 41 Garcimartín and Saumier (n 8) para 97. For more detailed discussions of the problem, see F Garcimartín, ‘The Judgments Convention: Some Open Questions’ (2020) 67 Netherlands International Law Review 19, 21–25; Jacobs (n 9) 144–47. 42 It should be noted that the second restriction, which already results from the limitation of the HCCH 2019 Judgments Convention to civil and commercial matters (Art 1(1)), is not in line with the case law on the same problem in the context of the Brussels I Regulation: See ECJ, Judgment of the Grand Chamber of 18 October 2011, Case C-406/09, Realchemie Nederland BV v Bayer CropScience AG, ECLI:EU:C:2011:668. 43 eg, if it was obtained by fraud; see Garcimartín and Saumier (n 8) para 98. 44 Art 2(a) Brussels Ibis Regulation: ‘ “judgment” means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. For the purposes of Chapter III, “judgment” includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement’.

28  Wolfgang Hau are manifold and difficult to resolve.45 Against this background, it seems regrettable but nonetheless understandable that the Hague Conference decided to exclude provisional measures from the scope of application altogether.46 This is clarified in the second sentence of Article 3(1)(b) of the HCCH 2019 Judgments Convention: ‘An interim measure of protection is not a judgment’.47 The Explanatory Report points out that this refers to measures that either provide a preliminary means of securing assets out of which a final judgment may be satisfied or maintain the status quo pending determination of an issue at trial.48 Consequently, an interim order for payment cannot be recognised or enforced under the Convention. Measures relating only to procedural or enforcement aspects, however, are not covered by the Convention because, as already mentioned, it only applies to decisions on the merits (see above, section II.C.ii). For this reason, an order to freeze the defendant’s assets is excluded without having to resort to the second sentence of Article 3(1)(b).49 Accordingly, the Convention does not apply to an anti-suit injunction, even if it is not issued as a mere interim measure, because such injunctions by their nature do not meet the definition of a judgment in Article 3(1)(b).50 It only follows from Article 3(1)(b) that the Convention does not prescribe the recognition or enforcement of interim measures issued in another Contracting State. However, this provision has no significance with regard to the question of whether the requested State, in which a foreign judgment is to be recognised and enforced, may itself grant provisional measures in this context, in particular as long as an appeal is pending in the State of origin (see below, section III.C.ii). This issue is not explicitly regulated in the Convention, unlike for example in Article 40 of the Brussels Ibis Regulation.

E.  Judicial Settlements The provision of Article 3(1)(b) is supplemented by Article 11, according to which judicial settlements (transactions judiciaires) [gerichtliche Vergleiche] which a court of a Contracting State has approved, or which have been concluded in the course of proceedings before a court of a Contracting State, and which are enforceable in the same manner as a judgment in the State of origin, shall be enforced under this Convention in the same manner as a judgment.51

As the concept of court in Article 11 is obviously the same as in Article 3(1)(b), it appears necessary that a judge, not just an officer of the court, has approved the settlement (see above, section II.B.i).52 45 For detailed discussions, see, eg, L Merrett, ‘Article 2’ in U Magnus and P Mankowski (eds), Brussels Ibis Regulation: European Commentaries on Private International Law, Vol I, 2nd edn (Otto Schmidt 2023) paras 18–32; and G Cuniberti, ‘Article 42’ in U Magnus and P Mankowski (eds), Brussels Ibis Regulation: European Commentaries on Private International Law, Vol I, 2nd edn (Otto Schmidt 2023) paras 8–22; M Brosch and M Mantovani, ‘Article 2’ in M Requejo Isidro (ed), Brussels I BIS: A Commentary on Regulation (EU) No 1215/2012 (Edward Elgar 2022) paras 2.30–2.34. 46 cf Bonomi and Mariottini (n 6) 545: ‘nevertheless disappointing in view of the great practical importance of interim relief ’. 47 See also Art 2(2) HCCH 1971 Judgments Convention; Art 4(1) and Art 7 HCCH 2005 Choice of Court Convention. The HCCH 2007 Maintenance Convention, on the other hand, does not contain any provision to the same effect. On this basis and in light of the special rule in its Art 31, it can be deduced that this Convention does cover the recognition of provisional measures, at least in principle. 48 Garcimartín and Saumier (n 8) para 99. 49 Garcimartín and Saumier (n 8) para 99, rely on this nevertheless as an example of the second sentence of Art 3(1)(b). 50 For a detailed discussion of the exclusion of anti-suit injunctions, see Jacobs (n 9) 150–54. 51 Unlike, for example, Art 58 Brussels Ibis Regulation, the Convention does not contain any provisions on the enforcement of foreign authentic instruments (actes authentiques; öffentliche Urkunden). See Jacobs (n 9) 160–61. 52 For a different position, see Jacobs (n 9) 156.

Judgments, Recognition, Enforcement  29 It follows from the twofold definition in Article 11 that, in the case of a settlement approved by a court, it is not necessary that court proceedings were pending at the time of the agreement.53 Rather, Article 11 also applies to an out-of-court settlement reached, for example, in the course of a mediation procedure or through independent negotiations between the parties, provided that the compromise was subsequently formally approved by a court and is therefore enforceable under national law.54 Despite the broad scope of its Article 11, there is no overlap between the HCCH 2019 Judgments Convention and the United Nations Singapore Convention of 20 December 2018 on International Settlement Agreements Resulting from Mediation,55 because the latter does not apply to settlement agreements that have been approved by a court or concluded in the course of proceedings before a court and that are enforceable as a judgment in the State of that court (Article 1(3)(a)).56 It is noteworthy that Article 11, with regard to judicial settlements, only prescribes enforcement, not recognition. Consequently, it does not follow from the Convention that a foreign judicial settlement may be invoked in the requested State as a defence to a new claim, even if the settlement has the force of res judicata under the law of its State of origin.57 Further differences in the treatment of judicial settlements and judgments can arise in respect of the requirements for enforcement and the applicable grounds for refusing enforcement under Article 7.58 Such particularities make it necessary to address the distinction between judgments and settlements.59 In this context, so-called ‘judgments by consent’ (jugements d’accord), as provided for in some legal systems, may cause problems. It is suggested that a judgment by consent can be classified as a genuine judgment within the meaning of Article 3(1)(b), provided, as the ECJ once stated with regard to the parallel problem in the Brussels Convention,60 the decision emanates from a judicial body of a Contracting State deciding on its own authority on the issues between the parties. In this respect, it is not sufficient for a judgment as envisaged by Article 3(1)(b) that a compromise was reached in the course of court proceedings and subsequently formally approved by the court. It follows that under the Convention a German Beschlussvergleich (section 278(6) German Code of Civil Procedure) would be classified as a settlement and not as a judgment. A settlement within the meaning of Article 11 can even exist if the procedural law of the State of origin attributes the effect of res judicata to it (as is the case, eg, under Swiss law).61

F.  Decisions Outside the Definition Decisions that are not judgments within the meaning of Article 3(1)(b) do not fall within the scope of application of the HCCH 2019 Judgments Convention. Consequently, the Convention 53 In this respect, Art 11 HCCH 2019 Judgments Convention is broader than Art 19 HCCH 1971 Judgments Convention, which applies only to ‘settlements made in court in the course of a pending proceeding’. 54 See Garcimartín and Saumier (n 8) para 297. 55 See: uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements. 56 cf Bonomi and Mariottini (n 6) 546; Jacobs (n 9) 156. 57 On this point and on the relevance of the principle of favor recognitionis, see Garcimartín and Saumier (n 8) para 298; Jacobs (n 9) 154–55. 58 Garcimartín and Saumier (n 8) 299, suggest that issues of jurisdiction will not arise because settlements are essentially consensual. However, this statement seems to be too broad, especially in the case of a judicial settlement concerning a right in rem in immovable property situated in another Contracting State (cf Art 6). 59 The view that the concept of judgment in the Convention includes settlements (see F Fuchs, ‘Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen’ [2019] Gesellschafts- und Wirtschaftsrecht (GWR) 395, 396) is incorrect and should be avoided. 60 See ECJ, Judgment of 2 June 1994, Case C-414/92, Solo Kleinmotoren v Emilio Boch, ECLI:EU:C:1994:221, para 17. 61 Art 208 (2) Swiss Code of Civil Procedure; Jacobs (n 9) 157–58.

30  Wolfgang Hau does not affect the question whether such foreign decisions may be recognised and enforced under other international treaties or the domestic law of the requested State. This result can be derived from the principle of favor recognitionis enshrined in Article 15 (see below, section IV.E) or simply from the fact that the Convention does not apply ratione materiae.62 It should be mentioned, however, that there is another question related to the concept of judgment, which will not to be discussed here: may the requested State oppose a decision even if it does not meet the requirements of Article 3(1)(b) by invoking Article 7(1)(e) or (f) to the recognition of a ‘genuine’ judgment?63

G.  Lis alibi pendens The HCCH 2019 Judgments Convention, unlike, for example, the Brussels Ibis Regulation in Article 29 et seq, does not contain rules on how to proceed when parallel court proceedings are brought in two or more Contracting States. In other words, the Convention only deals with the recognition of foreign judgments, not with the recognition of pendency in another forum.64 It should be noted, however, that the Convention may nevertheless come into play indirectly in this context when a national or supranational rule on lis alibi pendens (such as Articles 33 and 34 Brussel Ibis Regulation) permits the stay of proceedings in favour of proceedings already pending in another jurisdiction if it is to be expected that the court seised abroad will give a judgment capable of recognition and enforcement in accordance with the provisions of the Convention.

III.  Obligation to Recognise and Enforce A.  Recognition and Enforcement As already mentioned, the obligation to recognise and enforce judgments from other Contracting States provided for in Article 4(1) is the central provision of the HCCH 2019 Judgments Convention. In most cases, recognition and enforcement go hand in hand: the judgment debtor seeks enforcement of the judgment, and this in turn presupposes that the judgment can be recognised in the requested State.65 It should be clear, however, that the Convention also applies to cases in which only recognition, not enforcement, is sought.66 In line with this position, the Explanatory

62 The latter approach seems preferable and is advocated, for example, by Jacobs (n 9) 150. 63 The Explanatory Report stays silent on this issue; see, however, Marcos Dotta Salgueiro, ch 4, section III.B.i.c, in this volume. Note also the discussion of the parallel problem with regard to Art 45(1)(d) and (e) by P Mankowski, ‘Article 45’ in U Magnus and P Mankowski (eds), Brussels Ibis Regulation: European Commentaries on Private International Law, Vol I, 2nd edn (Otto Schmidt 2023) para 63 et seq. 64 In the meantime, the HCCH Working Group on matters related to jurisdiction in transnational civil or commercial litigation is discussing a future instrument that could particularly contribute to the coordination of concurrent proceedings. See the Working Group’s Report, Preliminary Document No 7 of February 2022; P Herrup and R Brand, ‘A Hague Parallel Proceedings Convention: Architecture and Features, Chicago Journal of International Law Online’ (forthcoming University of Pittsburgh Legal Studies Research Paper No 2022-27). 65 cf Garcimartín and Saumier (n 8) para 116: ‘a decision to enforce the judgment typically presupposes recognition of the judgment’. For a deeper discussion of the relation between recognition and enforcement, see G Cuniberti, Le fondement de l’effet des jugements étrangers (Brill Nijhoff 2019) paras 79–106. 66 With all due respect, it is submitted that C Kessedjian, ‘Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?’ (2020) 1 Nederlands Internationaal

Judgments, Recognition, Enforcement  31 Report states that a defendant who has obtained a dismissal of the action as unfounded in the State of origin may raise this judgment on the merits (see above, section II.C.i) as a defence if the defeated plaintiff attempts to bring the same matter back to court in another Contracting State.67 Neither the wording nor the objectives of the Convention suggest that only successful plaintiffs, but not successful defendants, should benefit from the free movement of judgments. In fact, the application in both cases is a requirement of equality of procedural arms, which amounts to a fundamental right in many legal systems.68

B. Enforceability The term ‘enforceability’ is not mentioned in Article 4(1), but in Article 4(3) and Article 11, which state that the judgment or judicial settlement must be enforceable under the law of the State of origin (see below, section III.C.ii). This requirement in turn is to be distinguished from the further one of enforceability in the requested State, which is addressed in Article 13(1) as a separate condition for enforcement. In this respect, enforceability can either be formally pronounced by a court (or other competent body) of the requested State in the course of a special procedure or be automatically attached to the foreign judgment by the law of the requested State (see below, section IV.A). In the event that the requested State requires a special procedure, the Convention is completely open: Article 13(1) mentions both the possibility of a declaration of enforceability (exequatur), which is typical of civil law jurisdictions, and the registration for enforcement, which is more in line with the tradition in common law jurisdictions.69

C.  Preconditions of Recognition and Enforcement i. Overview The second paragraph of Article 4(1) emphasises that recognition or enforcement may be refused only on the grounds specified in the Convention. With a view to other chapters of this volume, there is no need to discuss here that the obligation to recognise and enforce applies only if the judgment falls within the scope of the Convention (Articles 1–2, 8 and 16–19),70 if the court of the State of origin had international jurisdiction to give the judgment (Articles 5–6)71 and if there

Privaatrecht 19, 26 is incorrect or at least misleading when she explains: ‘The text does not differentiate between recognition and enforcement; both effects of the judgment must be granted after the conditions set forth in the text have been fulfilled. Therefore, there is no “reconnaissance de plein droit” or, in other words, it is not possible for a company to use a judgment in a subsequent proceeding as a shield only, so that an issue fully discussed in the first instance and upon which the foreign court has decided, would not be reopened, even though no “enforcement”, strictly speaking, is necessary’. 67 Garcimartín and Saumier (n 8) para 117. 68 See, eg, European Court of Human Rights, Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (civil limb), 2021, available at: www.echr.coe.int/documents/guide_art_6_eng.pdf), IV.A.4. 69 For an overview of these two basic systems, see T Domej, ‘Recognition and enforcement of judgments (civil law)’ and A Briggs, ‘Recognition and enforcement of judgments (common law)’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol I (Edward Elgar 2017); R Folsom, Principles of International Litigation and Arbitration, 2nd edn (2019) 447 et seq. For several helpful country reports, see Standing International Forum of Commercial Courts, Multilateral Memorandum on Enforcement of Commercial Judgments for Money, 2nd edn (2021), available at: www.sifocc. org. A model registration system for money judgments and non-monetary judgments alike is contained in s 7 et seq of the Commonwealth Model Law on the Recognition and Enforcement of Foreign Judgments 2018. 70 For details of the scope of application, see Xandra Kramer, ch 1 in this volume. 71 For details of the jurisdictional filters, see Pietro Franzina, ch 3 in this volume.

32  Wolfgang Hau are no grounds for refusal (Articles 7 and 10).72 Nor is the question at issue here to what extent Article 4(2) prohibits the requested State subjecting the foreign judgment to a review on the merits (révision au fond).73 The documents to be produced for recognition and enforcement are dealt with below (see below, section IV.C).

ii.  Effectiveness and Enforceability According to Article 4(3),74 in order to be recognisable, the foreign judgment must have effect in the State of origin, ie, it must be legally valid and operative.75 This is not the case, for example, if the judgment has already been set aside on appeal. Furthermore, the Convention states that enforceability, again under the law of the State of origin, is a prerequisite of enforcement in other Contracting States. The Explanatory Report points out that enforceability ends in particular when the limitation period for enforcement provided for by the law of the State of origin has expired.76 It seems noteworthy that the Convention does not require, at least in principle, that the foreign decision be final and conclusive.77 However, it goes without saying that finality is indispensable insofar as this is a precondition of the effectiveness under the law of the State of origin.78 In particular, the effect of res judicata can only be extended to other States if this effect is already given in the State of origin. The Convention leaves the Contracting States some leeway as regards the enforceability of non-final foreign judgments: according to Article 4(4), recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review (usually: by way of appeal) has not yet expired.79 However, such a refusal does not prevent a subsequent application for recognition or enforcement (Article 4(4), second sentence). It should be clear that instead of ordering a refusal, the legislature of the requested State can provide for a less far-reaching response, such as requiring the party invoking the foreign judgment to provide security.80 Furthermore, the Convention does not prevent the courts of the requested State from granting protective measures in favour of that party as long as the decision on recognition or enforceability is pending (see above, section II.D).81

D.  Recognisable Effects of Foreign Judgments While it seems more or less obvious what is meant by ‘enforcement’ in the Convention,82 its concept of recognition deserves some closer attention.

72 For details of the grounds for refusal, see Marcos Dotta Salgueiro ch 4 in this volume. 73 See Marcos Dotta Salgueiro, ch 4, section II, in this volume; Garcimartín and Saumier (n 8) paras 119–23; Jacobs (n 9) 319–24; Weller, Festschrift für Herbert Kronke (n 18) 627–28. 74 Parallel provision: Art 8(3) HCCH 2005 Choice of Court Convention. 75 Garcimartín and Saumier (n 8) para 125. 76 ibid, paras 126 and 310; Jacobs (n 9) 185. 77 cf Garcimartín and Saumier (n 8) para 129; Bonomi and Mariottini (n 6) 549; Jacobs (n 9) 197. 78 For different national solutions in this respect, see Garcimartín and Saumier (n 8) para 128. 79 See also Art 8(4) HCCH 2005 Choice of Court Convention. For the concept of ‘ordinary’ (as opposed to ‘extraordinary’) review, see Garcimartín and Saumier (n 8) para 130; Jacobs (n 9) 313. 80 Garcimartín and Saumier (n 8) para 133. See also Jacobs (n 9) 198–99, who correctly points out that the discretion under Art 4(4) belongs to the legislature and not to the courts of the requested State. 81 Garcimartín and Saumier (n 8) para 131; Jacobs (n 9) 314–15. 82 For a basic definition, see Garcimartín and Saumier (n 8) para 116: ‘Enforcement means the application of legal procedures by the courts (or any other competent authority) of the requested State to ensure that the judgment debtor obeys the judgment given by the court of origin’.

Judgments, Recognition, Enforcement  33

i.  Recognisable Effects Basically, recognition means allowing a foreign decision to have legal effects in the territory of the requested State. Under the Convention, that State is obliged to recognise the effect of res judicata of the foreign judgment and its enforceability. As regards res judicata, Article 4(1) covers both the substantive positive effect (ie, that the judgment is binding) and the procedural negative effect (ie, that the matter cannot be re-litigated).83 Some procedural rules distinguish more precisely between res judicata and similar binding effects that a final judgment may have, especially in cases where the judgment has dissolved a contract or a company (see above, section  II.C.v). At least in principle, such a Gestaltungswirkung is also to be recognised under the Convention. The same applies to the binding effect which, according to some procedural systems, occurs vis-a-vis third parties who have been notified of the proceedings but have not become parties (Interventionswirkung). Not recognisable under the Convention, on the other hand, is the so-called effet de fait (Tatbestandswirkung): this is not an aspect of recognition in the procedural sense, but a question of substitution in the context of the application of the lex causae.84

ii.  Applicable Law The question just discussed as to which effects of a judgment fall within the scope of application of the Convention must be distinguished from the further question of whether the precise scope of such a relevant effect is determined by the law of the State of origin or of the requested State. This is certainly one of the oldest and most controversial issues in the law of international civil procedure.85 It makes sense to distinguish between three constellations. First, no problems arise if both States agree on the extent of the effects of a judgment, for example, if both agree that only the parties, but not their successors in title, are bound by res judicata. The second conceivable constellation, in which the effects under the law of the State of origin are less far-reaching, is also unproblematic: in such cases, the effects must also remain correspondingly limited in the requested State, because it follows from Article 4 and the right to be heard that only those effects can be recognised abroad which are already attached to the judgment where it was given.86 The third constellation, however, poses considerable problems, which unfortunately occur quite frequently in the course of cross-border litigation: how is the case to be resolved if the effects of a judgment under the law of the State of origin extend further than would be the case from the perspective of the requested State? This becomes particularly relevant when the effect of res judicata under one procedural law extends to more issues or more persons than is provided for under the law of the requested State. Two main approaches come into consideration. The first, as traditionally advocated in the context of the Brussels Convention and the Brussels Regulations,87

83 For details, see, eg, the comparative account in Chase et al (eds) (n 27) 563 et seq. 84 cf Kessedjian (n 66) 27, fn 24, who points out that, for example, the ‘effet de fait’ or ‘effet de titre’ known under French law are not covered by the Convention. 85 For a very early, perhaps even the earliest discussion, see FC von Savigny, System des heutigen Römischen Rechts, Vol 8 (1849) 259 et seq. 86 See Jacobs (n 9) 327; H Schack, ‘Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen’ (2020) 40 IPRax. kein Zeilenumbruch, ‘The Judgments Convention: Some Open Questions’ (2020) 67 Netherlands International Law Review 19, 27, tends towards the same result, but formulates this too cautiously. 87 cf ECJ, Judgment of 4 February 1988, Case 145/86, Hoffmann v Krieg, ECLI:EU:C:1988:61, para 10: ‘Recognition must therefore have the result of conferring on judgments the authority and effectiveness accorded to them in the state in which they were given’. For detailed discussions, see eg, P Wautelet, ‘Article 36’ in U Magnus and P Mankowski (eds), Brussels Ibis Regulation: European Commentaries on Private International Law, Vol I, 2nd edn (Otto Schmidt 2023) para 6 et seq; W Voß, ‘Article 36’ in M Requejo Isidro (ed), Brussels I BIS: A Commentary on Regulation (EU) No 1215/2012 (Edward Elgar 2022) para 36.10 et seq.

34  Wolfgang Hau is to refer in principle to the law of the State of origin and to draw a line only when this would lead to a result incompatible with the public policy of the requested State (Wirkungserstreckungslehre or ‘doctrine of extension of effects’). More recently, however, the ECJ seems to be leaning towards the second position, according to which a foreign judgment should not be given more far-reaching effects in the requested State than a comparable judgment given in that State (Kumulationslehre or ‘doctrine of cumulated effects’).88 The proposal discussed during the preliminary work that the HCCH 2019 Judgments Convention should commit to the more recognition-friendly ‘doctrine of extension of effects’ has not been adopted in the final text.89 However, this does not mean that the Convention prescribes the more restrictive second approach. Rather, it can be assumed that the Convention leaves it up to the Contracting States to decide which of the two concepts they want to apply.90

iii.  Adaptation of Remedies With regard to judgments that are not for the payment of a sum of money (see above, section II.C.v), it sometimes happens that the court in the State of origin orders a legal remedy that is not provided for in the law of the requested State. According to the Explanatory Report, Article 18(1) allows for a declaration of non-application of the Convention in respect of a particular type of remedy.91 If such a declaration has not been made, the problem arises of how to enforce the foreign judgment ordering an unknown remedy. Although this was discussed in the course of the negotiations, the Convention unfortunately does not create a mechanism of adaptation as that envisaged in Article 54 of the Brussels Ibis Regulation.92 A solution must therefore be found at the level of the law in the requested State. The Explanatory Report, like the Report on the HCCH 2005 Choice of Court Convention, confines itself to calling for the foreign judgment to be given as much effect as possible.93

E.  Consequences of Non-Recognition The HCCH 2019 Judgments Convention regulates the conditions of recognition and enforcement as well as the right and even (in Article 6) the obligation to refuse recognition and enforcement. However, like most international instruments, it deals only very incompletely with the consequences of such a refusal.94 In any case, at least partial recognition must be considered (Article 9);

88 To this effect, see the rather problematic and short-sighted the judgment of the ECJ of 4 October 2018, Case C-379/17, Società Immobiliare Al Bosco, ECLI:EU:C:2018:806. 89 Garcimartín and Saumier (n 8) para 114, fn 108, cite an earlier draft, which proposed that a judgment ‘shall be given the same effect it has in the State of origin’ (cf Working Document No 170 E revised). 90 See Schack (n 86) 3–4; Jacobs (n 9) 329–31. The same conclusion might be drawn from considerations in the Explanatory Report: cf Garcimartín and Saumier (n 8) para 115; Garcimartín (n 86) 26–28. 91 cf Garcimartín and Saumier (n 8) para 337. For a narrower interpretation of Art 18(1), see Jacobs (n 9) 143–44. 92 Art 54 Brussels Ibis Regulation: ‘1. If a judgment contains a measure or an order which is not known in the law of the Member State addressed, that measure or order shall, to the extent possible, be adapted to a measure or an order known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests. Such adaptation shall not result in effects going beyond those provided for in the law of the Member State of origin. 2. Any party may challenge the adaptation of the measure or order before a court. 3. If necessary, the party invoking the judgment or seeking its enforcement may be required to provide a translation or a transliteration of the judgment’. 93 Garcimartín and Saumier (n 8) para 118; Goddard and Beaumont (n 4) 411. Yekini (n 36) 232, recommends following the guidelines of the Commonwealth Model Law on the Recognition and Enforcement of Foreign Judgments 2018. 94 On the second sentence of Art 4(4), see above, section III.C.ii; on Art 14(2) see below, section IV.D.

Judgments, Recognition, Enforcement  35 the party invoking the foreign judgment can restrict its application accordingly.95 Furthermore, according to the principle of favor recognitionis,96 which is enshrined in Article 15, subject to Article 6, the Convention does not prevent the recognition or enforcement of judgments under national law. In this context, the term ‘national law’ also includes other international treaties applicable in the requested State.97 Finally, it should be noted that an anti-enforcement injunction of the kind sometimes issued by English and US courts in order to prevent or stop enforcement of a foreign judgment abroad certainly has no legitimate place within the Convention system.98

IV.  Procedural Aspects A.  Application of the Law of the Requested State (lex loci executionis) The first sentence of Article 13(1) of the HCCH 2019 Judgments Convention states that 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. The meaning of this generally accepted provision99 is twofold. First, the Convention makes clear that it does not, in principle, create autonomous rules on the aspects mentioned (for exceptions see below, section IV.B).100 In particular, unlike, for example, Article 36(1) and Article 39 of the Brussels Ibis Regulation,101 the HCCH 2019 Judgments Convention does not oblige Contracting States to provide for automatic recognition and enforcement. Thus, the State addressed is not precluded from requiring a special procedure for recognition102 and/or a formal procedure to bring about enforceability (see above, section III.B). However, it seems incorrect that some authors103 infer from the wording of Article 13(1) that the Convention opposes the possibility of automatic enforcement, ie, even requires the Contracting States to provide for a procedure to bring about enforceability. On a separate note, Contracting States are free to decide whether their courts should hear only applications by judgment creditors or, based on the concept of procedural equality of arms, also applications by judgment debtors for refusal of recognition and enforcement.104 95 Fuchs (n 59) 398. 96 For details of this principle, see Xandra Kramer, ch 1, section II.B, in this volume; Jacobs (n 9) 99–102 and 179; W Hau, ‘Anerkennungsrechtliches Günstigkeitsprinzip und Anerkennungsverbote in Zivil- und Handelssachen’ in C Althammer and C Schärtl (eds), Dogmatik als Fundament für Forschung und Lehre: Festschrift für Herbert Roth (Mohr Siebeck 2021). 97 cf Garcimartín and Saumier (n 8) para 21; Jacobs (n 9) 100–01. For a different, but too narrow position, see Kessedjian (n 66) 26, who insists on the wording of Art 15 (‘under national law’). 98 cf W Hau, ‘Executio non conveniens? – Zum Ausschluss der Vollstreckung anerkennungsfähiger ausländischer Entscheidungen’ (2017) 116 Zeitschrift für vergleichende Rechtswissenschaft (ZVglRWiss) 23, 40. 99 Parallel provisions: Art 14 HCCH 1971 Judgments Convention; Art 14 HCCH 2005 Choice of Court Convention; Art 23(1) and Art 32(1) 2007 Maintenance Convention. 100 This restraint seems pragmatic and sensible, but is nevertheless criticised by some commentators. See Yekini (n 36) 236: ‘The drafters of the Convention missed a great opportunity of harmonising enforcement rules or introducing a simple efficient mechanism that can be adopted by States’. 101 On the principles of automatic recognition and automatic enforceability under the Regulation, see Wautelet (n 87) para 13 et seq; G Cuniberti, ‘Article 39’ in U Magnus and P Mankowski (eds), Brussels Ibis Regulation: European Commentaries on Private International Law, Vol I, 2nd edn (Otto Schmidt 2023) para 1 et seq; Voß (n 87) para 36.22 et seq; G Chiapponi, ‘Article 39’ in M Requejo Isidro, Brussels I BIS: A Commentary on Regulation (EU) No 1215/2012 (Edward Elgar 2022) para 39.06 et seq. 102 Some authors criticise that the Convention does not prescribe the principle of automatic recognition; cf Schack (n 86) 6. 103 See Jacobs (n 9) 179–80, who relies for his view, but probably incorrectly, on Garcimartín and Saumier (n 8) para 309. 104 cf Garcimartín and Saumier (n 8) para 315.

36  Wolfgang Hau Second, Article 13(1) contains a conflict of laws rule that, in principle, invokes the applicability of the lex loci executionis, ie, the procedural regime of the requested State.105 To the extent that the Convention does not create autonomous provisions, this is relevant with regard to all matters of recognition, enforceability and enforcement. However, it is unclear and rather doubtful whether the lex loci executionis, without further ado, also governs the rules on burden and standard of proof, in particular with regard to the existence of international jurisdiction (Article 5) and the absence of grounds for refusal (Article 7).106 Although not mentioned in Article 13(1), it seems self-evident that the requested State must observe higher-ranking rules in the course of enforcement, in particular the international law rules on immunity of States or international organisations (cf Article 2(5)).107 Since Article 13(1) refers to the law of the requested State, but not explicitly to its ‘internal law’, the conflict of laws rules of the requested State may come into play: insofar as the law of the requested State does not wish to be applied in respect of certain aspects falling within the scope of Article 13(1), it seems conceivable that it could refer – by means of renvoi – to the law of another state (eg, the State of origin).108 The Explanatory Report does not mention this possibility in general, but at least with regard to the question of which limitation period should apply to enforcement.109

B.  Autonomous Provisions as Regards Procedure As mentioned in the first sentence of Article 13(1) (‘unless this Convention provides otherwise’), the Convention creates some autonomous minimum standard rules for recognition and enforcement. In the HCCH 2019 Judgments Convention (as in the HCCH 2005 Choice of Court Convention), the Hague Conference is much more restrained than in its HCCH 2007 Maintenance Convention, which in Articles 34 and 35, for example, is quite detailed on enforcement measures and transfers of funds. Nevertheless, the main autonomous minimum standard rules provided for in the new Convention are considered below.

i.  Obligation to Act Expeditiously The first autonomous provision can be found in the second sentence of Article 13(1):110 the court of the requested State is required to act expeditiously, or, in other words, to avoid unreasonable or undue delays. Beyond the wording of this provision, this obligation should apply not only to the courts, but to all State bodies involved in recognition and enforcement under the lex loci executionis.111 The Convention does not provide for a sanction, but this is obvious because it does

105 Recently, there has been a growing comparative interest in the different national systems of enforcement of judgments in civil and commercial matters. Particular mention should be made of the monograph by Kennett (n 14), and the anthology edited by M Deguchi, Effective Enforcement of Creditors’ Rights (Springer 2022). See also the publications of the International Union of Judicial Officers: YP Moutout (ed), Global Code of Enforcement, 3rd edn (UIHJ Publishing 2016); M Schmitz (ed), Global Code of Digital Enforcement (UIHJ Publishing 2021). 106 cf Jacobs (n 9) 183–84. 107 ibid, 180. 108 ibid, 341–42. 109 Garcimartín and Saumier (n 8) para 312. 110 Parallel provisions: Art 14 HCCH 2005 Choice of Court Convention; Art 32(2) HCCH 2007 Maintenance Convention. 111 In this respect, the shorter but broader wording of Art 32(2) 2007 Maintenance Convention (‘Enforcement shall be prompt’) seems more accurate.

Judgments, Recognition, Enforcement  37 not specify any deadlines and even the Explanatory Report does not give any detailed guidance on how the obligation is to be handled.

ii.  Executio non conveniens Another autonomous provision, unknown in the earlier Conventions, is now included in Article 13(2): ‘The court of the requested State shall not refuse the recognition or enforcement of a judgment under this Convention on the ground that recognition or enforcement should be sought in another State’. In essence, this wise innovation is a rejection of the doctrine of executio non conveniens:112 the Convention does not allow for judicial discretion as to the appropriateness of recognition or enforcement of judgments from other Contracting States. Consequently, the requested State may not refuse to enforce a foreign judgment on the grounds that it would be politically or economically more expedient from its point of view to enforce the judgment abroad. Such protectionism is also ruled out insofar as the judgment creditor may not be required to prove that he or she has already unsuccessfully sought enforcement in another jurisdiction, in particular in the State of origin. Given the above, it can also be concluded that the Convention permits enforcement shopping or, at least, does not actively prevent it.113 Against the background of Article 13(2), the further question arises as to whether the requested State may make the enforceability of the foreign judgment dependent on the requirement of personal jurisdiction of its courts or enforcement authorities.114 The Explanatory Report on this point remains unclear but could mean that the requested State, according to Article 13(2), may not grant its courts any discretionary power, but is nevertheless free to regulate that enforcement should only take place if the domicile of the judgment debtor or enforceable assets are located within its territory.115 This position is convincing, although not uncontroversial.116

iii.  Prohibition of Discrimination The question just discussed leads to another issue that is not dealt with in the text of the HCCH 2019 Judgments Convention but in the Explanatory Report: the authors, referring to the principle of good faith as enshrined in Article 31(1) of the Vienna Convention of 23 May 1969 on the Law of Treaties, propose to derive from the Convention an autonomous prohibition of discrimination against foreign judgments.117 This seems convincing, although it is not clear why the Hague Conference abstained from an explicit prohibition of discrimination in the HCCH 2019 Judgments Convention, as is provided for in the HCCH 2007 Maintenance Convention.118 If one nevertheless assumes that the HCCH 2019 Judgments Convention contains an implicit prohibition of discrimination, it follows, for example, that the limitation periods for enforcement

112 See Hau, ‘Executio non conveniens? – Zum Ausschluss der Vollstreckung anerkennungsfähiger ausländischer Entscheidungen’ (n 98) 32–33. For a similar analysis, see Bonomi and Mariottini (n 6) 564: ‘Article 13(2) precludes the requested court from applying the doctrine of forum non conveniens at the recognition or enforcement stage’. 113 For further discussion of this phenomenon, see W Hau, ‘Enforcement shopping im grenzüberschreitenden Zivilrechtsverkehr’ [2021] Deutsche Gerichtsvollzieher Zeitung (DGVZ) 162. 114 This aspect is briefly addressed but left open by Bonomi and Mariottini (n 6) 564–65. 115 Garcimartín and Saumier (n 8) paras 318–19. 116 For a different position, see Jacobs (n 9) 186–94, who argues that the Convention precludes Contracting States from requiring personal jurisdiction of their courts as a condition for a declaration of enforceability. 117 See Garcimartín and Saumier (n 8) para 313; Jacobs (n 9) 184–85. 118 cf Art 33 HCCH 2007 Maintenance Convention: ‘The State addressed shall provide at least the same range of enforcement methods for cases under the Convention as are available in domestic cases’.

38  Wolfgang Hau provided for by the law of the requested State must not distinguish between domestic judgments and judgments from other Contracting States. With regard to the applicable limitation rules, there is another notable difference between the HCCH 2019 Judgments Convention and the HCCH 2007 Maintenance Convention,119 which is, however, explicable if one takes into account the specificities of the enforcement of maintenance obligations. As can be deduced from Article 13(2), the Convention prohibits discrimination not only against foreign judgments, but against foreign judgment creditors. This prohibition would, for example, conflict with a national regulation according to which only creditors who are nationals of or reside in the requested State can have a foreign judgment recognised and enforced, or that they are subject to better conditions of enforcement than foreign creditors.120 In general, it should not matter for access to justice (as emphasised in the Preamble of the Convention) whether the interested party belongs to the requested State, to another Contracting State or to a third State.

C.  Documents to be Produced Largely in line with Article 13 of the HCCH 2005 Choice of Court Convention, Article 12(1) of the HCCH 2019 Judgments Convention lists the documents that the party seeking recognition of the foreign judgment or applying for its enforcement must produce in the requested State.121 However, the same documents may also be required from a party filing an application to contest the recognition or enforceability of the foreign judgment. In both situations, additional documents may be necessary under the circumstances described in Article 12(2). Language issues are often crucial in cross-border disputes, both because they are related to the right to be heard and because translations cause costs and delays. Under Article 12(4), the requested State may require that all documents referred to in this Article be either produced in one of its official languages or accompanied by a certified translation. In accordance with the principle laid down in Article 13(1), the Convention does not regulate the consequences of failure to produce the necessary documents, but leaves this to the law of the requested State. The Explanatory Report points out, however, that any formalism should be avoided in the interests of the Convention’s objectives.122 Since the Convention, regrettably, lacks a prohibition such as that foreseen in earlier conventions of the HCCH,123 the requested State may insist on the certification of foreign documents (ie, legalisation or apostille),124 unless, of course, otherwise provided for in an applicable international treaty.125 Article 12(3) refers to a document drawn up by a judge or officer of a court (not necessarily the court which gave the judgment) in the State of origin in a form drafted by the Hague

119 cf Art 32(5) HCCH 2007 Maintenance Convention: ‘Any limitation on the period for which arrears may be enforced shall be determined either by the law of the State of origin of the decision or by the law of the State addressed, whichever provides for the longer limitation period’. 120 Art 3 HCCH 1971 Judgments Convention expressly clarified that it must be applied irrespective of the nationality of the parties. 121 For details, see Garcimartín and Saumier (n 8) para 301. Yekini (n 36) 236–37, expects practical problems with regard to Art 12(1)(b). 122 Garcimartín and Saumier (n 8) paras 302–03. 123 See Art 13 HCCH 1971 Judgments Convention; Art 18 HCCH 2005 Choice of Court Convention; and Art 41 HCCH 2007 Maintenance Convention. 124 Garcimartín and Saumier (n 8) para 307. 125 See, in particular, HCCH 1961 Apostille Convention.

Judgments, Recognition, Enforcement  39 Conference and made available to the judgment creditor in order to facilitate the free circulation of the judgment. This recommended form, available on the HCCH home page,126 provides for information about the court and the parties, as well as on the existence, issuance and content of the judgment. Its use is not mandatory, but seems advisable. It would be useful if official versions of the recommended form were also provided in other languages.

D. Costs Article 14 contains a provision that was not included in the HCCH 2005 Choice of Court Convention: it regulates issues of security for costs based on the consideration that, on the one hand, discrimination against the judgment creditor must be avoided and, on the other, that necessary protection of the debtor must be ensured.127 Article 14(1) prevents the requested State, subject to a declaration under paragraph 3, to require security, bond or deposit, in whatever form it be described (eg, cautio judicatum solvi etc), from a party applying for enforcement of a judgment given in another Contracting State on the sole ground that such party is a foreign national or is not domiciled or resident in the requested State. Against this background, Article 14(2), on the other hand, protects the judgment debtor by providing for the enforceability of a cost decision given against the judgment creditor who was exempted from the requirement for security, bond or deposit, either under paragraph 1 or national law. It should be noted that Article 14(1) does not preclude a requirement for security on other grounds, in particular the fact that the creditor has no assets in the requested State.128 Article 14 as a whole applies, beyond its too narrow wording, not only to enforceability proceedings, but also to proceedings concerning the mere recognition of foreign judgments.129 Regrettably, the HCCH 2019 Judgments Convention lacks a provision such as that foreseen in Article 18 of the HCCH 1971 Judgments Convention, which states that legal aid granted to a party in the State of origin should be extended in accordance with the law of the requested State in any proceedings for the recognition or for the enforcement of the foreign judgment.

V. Conclusion It has become apparent that the HCCH 2019 Judgments Convention leaves some questions unanswered even with regard to such fundamental concepts as judgment, recognition, enforceability and enforcement. This is not surprising, as the Convention is the result of many years of tough negotiations and a fruit of pragmatism and legislative self-restraint.130 Of course, in light of the Convention’s declared objectives, one would sometimes have wished for clearer guidelines,

126 www.hcch.net/en/publications-and-studies/details4/?pid=6739&dtid=65. 127 For details, see M Dotta Salgueiro, ‘Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century’ (2020) 67 Netherlands International Law Review 113; Garcimartín and Saumier (n 8) paras 322–23; Jacobs (n 9) 147–49 and 181–82. 128 Garcimartín and Saumier (n 8) para 321. 129 For another position, see Jacobs (n 9) 182. 130 The pragmatic character as a recipe for success of the HCCH 2019 Judgments Convention is emphasised, for example, by Yekini (n 36) 185–89.

40  Wolfgang Hau especially since, unlike within the EU, there is no international court that can deliver binding solutions for all Contracting States. However, many of the open questions are answered in the Explanatory Report, and further answers can be expected from national legislation, courts and academic discussion. The remaining imponderables do not seem all too serious, at least in the context of the concepts examined here, and should not stand in the way of acceptance of the Convention.

3 The Jurisdictional Filters PIETRO FRANZINA*

I.  The Purpose of Jurisdictional Filters A.  The Place of Articles 5 and 6 within the Convention Chapter II of the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (HCCH 2019 Judgments Convention or the Convention) sets out the conditions subject to which a judgment given in a Contracting State is eligible for recognition and enforcement under the Convention in another Contracting State. One such condition relates to the origin of the judgment concerned. The judgment must emanate from the State with which the dispute has a proper connection, in accordance with Articles 5 and 6 of the Convention. Articles 5 and 6 lay down for this purpose a set of rules of ‘indirect’ jurisdiction. Compliance with those rules entails that the judgment qualifies for ­recognition under the Convention, subject to the grounds for refusal in Articles 7–10. It is only for the sake of recognition and enforcement that the Convention deals with the jurisdiction of courts. The Convention does not determine whether the courts of a Contracting State have authority to decide a given claim as to its substance. Other rules, ie, the rules on ‘direct’ jurisdiction in force in the forum State, perform this task. In this sense, nothing in the Convention prevents a Contracting State from retaining, or adopting, such rules on direct jurisdiction as it deems appropriate, no matter whether the connecting factors employed depart from either Article 5 or Article 6 of the Convention.

B.  Appropriateness of Jurisdiction as a Trust-Building Factor Several international texts on the recognition of judgments provide for an assessment of the appropriateness of the jurisdiction of the court of origin as a prerequisite for recognition and enforcement.1 They may be classified into three main categories. * Professor of International Law, Catholic University of the Sacred Heart (Milan). The author took part as a delegate of Italy in the 4th meeting of the Special Commission on the Judgments Project (2018) and in the Twenty-Second Diplomatic Session of the Hague Conference on Private International Law which resulted in the adoption of the Judgments Convention. The views expressed here are entirely personal. 1 Actually, few international instruments provide that recognition may occur regardless of any control on the jurisdiction of the court that rendered the decision. See, among others, the Agreement between Australia and New Zealand

42  Pietro Franzina Under some conventions, a foreign judgment qualifies for recognition and enforcement if the court that rendered the judgment had jurisdiction over the matter in accordance with the law of the requested State, no matter the grounds of jurisdiction provided for in that law. The Inter-American 1979 Convention on Foreign Judgments and Arbitral Awards,2 to name one example, fits into this group. Other conventions and international instruments establish a list of jurisdictional bases that the Contracting States agree to regard as acceptable for the purposes of recognition. The HCCH 2019 Judgments Convention comes within this group, as do, for example, the HCCH 1970 Divorce Convention3 and the HCCH 2007 Child Support Convention.4 The bases of jurisdiction in the instruments of this kind are often called jurisdictional ‘filters’, since they filter out judgments based on unacceptable grounds of jurisdiction and prevent them from qualifying for recognition and enforcement under the rules therein.5 Finally, the conventions and instruments in the third category combine rules on the recognition of judgments and rules on direct jurisdiction. Under these ‘double’ instruments, recognition is generally conditional on the jurisdiction of the court of origin being in accordance with the harmonised rules on direct jurisdiction therein. The HCCH 2005 Choice of Court Convention6 and the HCCH 1996 Protection of Children Convention,7 among others, follow this pattern.8 Some double instruments, such as Regulation (EU) No 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Ibis),9 on Trans-Tasman Court Proceedings and Regulatory Enforcement, Christchurch, 24 July 2008, UNTS 2981, 29, or Regulation (EU) No 606/2013 of 12 June 2013 on mutual recognition of protection measures in civil matters [2013] OJ L181/4. Some conventions dispense with assessing the jurisdiction of the court of origin, save for special circumstances, but provide, in turn, for other forms of control (eg, as regards the law applied to the substance of the matter): see, for instance, the ICCS Convention on the Recognition of Decisions Relating to the Matrimonial Bond, Luxembourg, 8 September 1967, available at: ciec1.org. 2 Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards, Montevideo, 8 May 1979, UNTS 1439, 87. According to Art 2(d) of the Inter-American Convention, judgments rendered in one Contracting State are granted ‘extraterritorial validity’ in the other States Parties if ‘[t]he judge or tribunal rendering the judgment is ­competent in the international sphere to try the matter and to pass judgment on it in accordance with the law of the State in which the judgment … is to take effect’. 3 Art 2 of the Divorce Convention provides that divorces and legal separations obtained in one Contracting State enjoy recognition in another, subject to the remaining terms of the Convention, if, at the date of the institution of the proceedings in the State of origin, ‘the respondent had his habitual residence there’, or if other circumstances, listed in the provision, occurred in that State. 4 Pursuant to Art 20 of the Hague Child Support Convention, a decision made in one Contracting State qualifies for recognition and enforcement in the other Contracting States if ‘the respondent was habitually resident in the State of origin at the time proceedings were instituted’, or the case was linked to the State of origin by other circumstances, named in the provision. 5 M Weller, ‘The Jurisdictional Filters of the HCCH 2019 Judgments Convention’ (2019/20) 21 Yearbook of Private International Law 279, 281. 6 Art 5(1) of the HCCH 2005 Choice of Court Convention stipulates that the court or courts of a Contracting State designated in an exclusive choice of court agreement in accordance with the Convention ‘shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State’. As stated in Art 8(1), judgments given by a court of a Contracting State designated in an exclusive choice of court agreement qualify for recognition and enforcement in other Contracting States in accordance with the Convention. The recognition and enforcement of those judgments ‘may be refused only on the grounds specified in this Convention’. 7 The Child Protection Convention determines, in Chapter II, the grounds on which the judicial or administrative authorities of a Contracting State have jurisdiction to take measures directed to the protection of the child’s person or property. Art 23 provides that the measures taken by the authorities of a Contracting State ‘shall be recognised by operation of law in all other Contracting States’, but adds that recognition may be refused, inter alia, ‘if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II’. 8 The view has been put forward that the conventions that set out rules of direct jurisdiction, but fail to include rules on the recognition and enforcement of judgments given on the basis of those rules, should be interpreted as entailing an implicit obligation to enforce such judgments: G Cuniberti, ‘Enforcement of Court Decisions under the Cape Town Convention’ (2018) 7 Cape Town Convention Journal 93. 9 [2012] OJ L351/1 of 20 December 2012.

The Jurisdictional Filters  43 go as far as to dispense, save for some exceptions, with the assessment of the jurisdiction of the court of origin as a prerequisite for recognition and enforcement, thereby facilitating the ­circulation of judgments across the States concerned.10 The described models, despite their differences, rest on the premise that convergence as regards jurisdiction between the State of origin and the requested State is crucial to the ­cross-border circulation of judgments.11 This conjecture may be explained as follows. Each State is free as a matter of general ­international law to establish the conditions for the recognition of judgments rendered abroad.12 Foreign judgments are obviously different from local ones. The procedural rules applied in the State of origin may differ greatly from those in force in the State where the judgment is invoked. In addition, the substance of the dispute may have been assessed by the court of origin based on standards that the courts in the requested State would not be instructed, or permitted, to consider. Against this backdrop, equivalence, rather than similarity, is key to the recognition of foreign judgments. The State where the effects of a judgment are sought must be satisfied, based on its own standards of fairness and reasonableness, that the judgment in question amounts to a proper and balanced expression of judicial sovereignty. If the test is passed, then the judgment is worth the trust of the requested State and may be given effect in its legal order. A range of factors may need to be considered for the purposes of this assessment. These include the grounds on which the court of origin asserted its jurisdiction. States do not necessarily share the same views as to what constitutes a fair and reasonable basis of jurisdiction. The bases used in one State could be seen as arbitrary, inconvenient or oppressive by another.13 The latter State cannot prevent the courts of the former from making use of those grounds, but it may deny recognition to such foreign judgments as depart from its own jurisdictional standards. By joining the HCCH 2019 Judgments Convention, the Contracting States agree to regard the jurisdictional bases in Articles 5 and 6 as appropriate for the purposes of recognition.14 A judgment emanating from a Contracting State where one of those bases is met must accordingly be given effect in another, unless the Convention itself provides otherwise. 10 The Brussels Ibis Regulation applies, in reality, to the recognition and enforcement of any judgments within the material and temporal scope of the Regulation itself, provided they originate in a Member State of the EU. This includes such judgments as may be rendered, via Art 6, by a court whose jurisdiction rests on domestic rules on direct jurisdiction, rather than the uniform rules laid down in the Regulation itself. 11 On the theoretical bases for the recognition and enforcement of foreign judgments, see generally A Yekini, The Hague Judgments Convention and Commonwealth Model Law (Hart Publishing 2021) 23 ff. 12 R Michaels, ‘Recognition and Enforcement of Foreign Judgments’ (2009) in Max Planck Encyclopedia of Public International Law, para 11, available at: opil.ouplaw.com/home/mpil. 13 According to RA Brand, ‘The Hague Judgments Convention in the United States: A “Game Changer” or a New Path to the Old Game?’ (2021) 82 University of Pittsburgh Law Review 847, 856, not all of the tests in Art 5(1) of the Convention may necessarily be described as ‘bases of jurisdiction’. For instance, the tests in Art 5(1)(a), (c) and (e), ie, those revolving around the defendant’s habitual residence being in the State of origin, consent on the part of the claimant and party consent, can rather be described ‘as simple fairness tests by which it can be determined that it is appropriate for the courts of other states to give effect to the resulting judgment’. Some of the tests, Brand continues, ‘may also be described as rules of comity based on public international law considerations, namely: when should a public body (a court) in one country not interfere with, and instead contribute to, making effective, the relationship between a public act (a judgment of a court of another country) and the parties affected by that act?’ The remark captures the nature and purpose of Arts 5 and 6 (ie, the fact that their function merely consists in determining whether a judgment qualifies for recognition), and applies, as such, to all the provisions therein. The ‘jurisdiction’ to which the latter provisions allude is not the same as the jurisdiction that the (harmonised) rules on direct jurisdiction are meant to allocate among States. On the asymmetry between direct and indirect jurisdiction, see generally R Michaels, ‘Some Fundamental Jurisdictional Conceptions as Applied in Judgment Conventions’ in E Gottschalk et al (eds), Conflict of Laws in a Globalized World (Cambridge University Press 2007). 14 As stated in Art 4(1) of the Convention, a judgment given by a court of a Contracting State ‘shall be recognised and enforced in another … in accordance with the provisions of this Chapter’. Recognition or enforcement, the provision goes on to say, ‘may be refused only on the grounds specified in this Convention’.

44  Pietro Franzina

II.  Layout and Operation of the Jurisdictional Filters A.  Concurrent versus Exclusive Filters As mentioned, two provisions in the HCCH 2019 Judgments Convention deal with the ­jurisdiction of the court of origin: Article 5 and Article 6. Article 5 sets forth a list of jurisdictional requirements that a judgment must fulfil to be recognised under the Convention. However, as stated in Article 15, the Convention does not preclude the recognition or enforcement of a judgment ‘under national law’. This means that a judgment rendered in a Contracting State on a ground other than those listed in Article 5 may still be given effect in another Contracting State, provided that the relevant rules on recognition in force in the latter State so provide, no matter their nature and source (ie, including any applicable international instrument).15 The jurisdictional bases in Article 5 are thus concurrent in nature, in the sense that they operate in parallel with the domestic law of the State where recognition is sought and with such other rules on recognition as apply in that State to the judgment in question. Article 6 similarly contemplates an eligible jurisdictional basis. However, unlike Article 5, it also involves a prohibition. According to Article 6, a judgment that ruled on rights in rem in immovable property must be recognised and enforced in another Contracting State ‘if and only if ’ the property concerned is situated in the State of origin. This implies that a Contracting State must refrain from recognising such judgments as may have been given in a State other than the Contracting State of the situs, no matter whether its domestic rules would provide otherwise. It is in this sense that the basis in Article 6 is exclusive. The reason why the operation of Article 6 differs from that of Article 5 is that the concerns underlying the two provisions are not the same. Article 5 chiefly reflects a concern for the circulation of judgments from one Contracting State to another. Article 6 embodies, in addition, a concern for the protection of the prerogatives of the State where the property concerned is located.16 By requiring that the Contracting States refrain from recognising a judgment rendered in a State other than the State of the situs, Article 6 preserves the control of the latter State over the immovables located on its territory.17

15 Consistent with the philosophy of maximising global circulation of judgments, the Convention does not impose an exhaustive or exclusive code or ‘ceiling’ for recognition and enforcement: R Garnett, ‘The Judgments Project: fulfilling Asser’s dream of free-flowing judgments’ in T John, R Gulati and B Köhler (eds), The Elgar Companion to The Hague Conference on Private International Law (Edward Elgar 2020) 320. 16 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 233: ‘It is common and largely uncontroversial that a State will consider itself to have exclusive jurisdiction on claims relating to rights in rem over immovable property located in that State’. 17 The weight accorded to the described concern for control is reflected in Art 23 of the Convention, on the relationship with other international instruments. Pursuant to Art 23(2), the Convention ‘shall not affect the application by a Contracting State of a treaty that was concluded before this Convention’. Art 23(3) extends this ‘non-affect’ clause to the treaties concluded after the Convention, with the proviso, however, that nothing in such a later treaty ‘shall affect the obligations under Article 6 towards Contracting States that are not Parties to that treaty’. Art 23(4) stipulates, for its part, that the Convention is without prejudice to the application of the rules of a Regional Economic Integration Organisation (REIO) that is a party to the Convention as concerns the recognition or enforcement of a judgment given by a court of a Contracting State that is also a Member State of that REIO. Here, again, if the rules in question are adopted after the Convention, their primacy is only ensured ‘to the extent that they do not affect the obligations under Article 6’ towards Contracting States that are not Member States of the REIO.

The Jurisdictional Filters  45

B.  Equality of the Listed Filters A judgment is eligible for recognition and enforcement under the HCCH 2019 Judgments Convention if any one of the jurisdictional requirements in Article 5 or Article 6 is met. The rules of direct jurisdiction that are found in domestic legal systems and in international instruments often place certain grounds of jurisdiction on a higher standing than others.18 The Convention does not follow this approach.19 Rather, most of the individual provisions that make up Articles 5 and 6 of the Convention are of limited scope, in the sense that they are available only where certain conditions exist. As it will be seen below, some apply to judgments that ruled on a particular matter (eg, a matter relating to a contract), others relate to judgments given in special circumstances (eg, where the defendant failed to contest the jurisdiction of the court of origin during the proceedings etc). As a rule, these provisions are not mutually exclusive. It may be that a judgment falls within the scope of two or more provisions. For the purposes of recognition, it is sufficient that the judgment fulfils the conditions set out in any of the pertinent provisions.20 Similarly, where a judgment appears to satisfy, cumulatively, two or more jurisdictional grounds among those in Articles 5 and 6, it is unnecessary to ascertain whether all such grounds are met in the circumstances. The requested court may focus on one basis (normally, the one that is easier to assess against the available evidence), on the understanding that, if that particular basis is met, the judgment in question is eligible for recognition without any further investigation being required as regards the jurisdiction of the court of origin.

C.  Operation of the Filters in the Requested State The assessment that the authorities of the requested State must carry out for the purposes of Articles 5 and 6 is independent from the assessment made by the court of origin of its own jurisdiction. The former does not amount to a review of the latter.21 It does not matter what basis of jurisdiction the court of origin relied upon when it ruled on the dispute.22 The court of origin may have referred in its judgment to a basis nominally outside the list in Articles 5 and 6, but this does not prevent the judgment from being eligible for recognition under the Convention if the jurisdiction of that court is consistent, in fact, with the requirements in the Convention.

18 That is notably the case of the rule that is currently found in Art 4(1) of Regulation (EU) No 1215/2012, whereby jurisdiction rests, generally, with the courts of the State where the defendant is domiciled. The European Court of Justice has often labelled the latter rule as ‘the general principle’ underlying the European regime of jurisdiction in civil and commercial matters, stressing that it is ‘only by way of derogation from that general principle’ that, in cases that are ‘exhaustively listed’ in the Regulation itself, a defendant domiciled in one Member State may (or must) be sued in the courts of another State. See, for this language, Case C-89/91, Shearson Lehmann Hutton Inc v TVB Treuhandgesellschaft für Vermögensverwaltung und Beteiligungen mbH, ECLI:EU:C:1993:15, para 14 f. 19 Garcimartín and Saumier (n 16) para 146. 20 ibid, para 138. 21 Rather, it may be that the jurisdiction of the court of origin is challenged in the State where the judgment was rendered. As long as the judgment is the subject of review of the State of origin (including where the review is sought because of the court’s alleged lack of jurisdiction), recognition or enforcement may be postponed or refused in the State requested under Art 4(4). See further Wolfgang Hau, ch 2, section III.C, in this volume. 22 PA Nielsen, ‘The Hague 2019 Judgments Convention – from failure to success?’ (2020) 16 Journal of Private International Law 205, 214.

46  Pietro Franzina When assessing the jurisdiction of the court of origin for the purposes of recognition, the need may arise to investigate the facts of the case. Articles 5 and 6 refer to factual circumstances such as the habitual residence of the person against whom recognition is sought or the location of the branch of the defendant from whose activities the claim arose. Thus, recognition may ultimately depend on whether the relevant circumstances were located in the State of origin. The requested court is permitted to assess such circumstances insofar as the application of the Convention so requires. Article 4(2) excludes any ‘review of the merits of the judgment in the requested State’, but provides that there may be ‘such consideration as is necessary for the ­application of [the] Convention’. The fact that the court of origin might have itself examined and assessed the above circumstances does not limit such consideration. The Convention fails to state whether the findings of fact of the court of origin are binding on the courts of the State addressed. This is understood to mean that nothing prevents the requested court from reconsidering the facts of the case, provided that such reconsideration is limited to what is necessary for the application of Articles 5 and 6.23 Incidentally, the described solution differs from the solution in Article 8(2) of the HCCH 2005 Choice of Court Convention, whereby the courts of the State addressed are bound by the findings of fact of the court of origin.24 The latter rule, however, makes sense only in respect of an instrument, like the Choice of Court Convention, that also includes rules on direct jurisdiction.25 The reason for this is that the courts of each Contracting State have authority to assess their own jurisdiction under the latter Convention. This authority would be frustrated if the courts of other States were permitted to interfere with the said assessment. The described concern simply fails to arise in the context of the Judgments Convention, whose only purpose, as observed above, is to deal with the recognition and enforcement of judgments. The burden of showing consistency with the jurisdictional requirements in Article 5 or Article 6 rests, in principle, with the person seeking to rely on the judgment in the requested State.26 Conversely, it is for the person who challenges recognition to prove that a ground for refusal is met.27 The Convention does not take an explicit stance on the issue, but the suggested allocation reflects the understanding whereby compliance with the jurisdictional bases in Articles 5 and 6 rank among the ‘positive conditions’ for recognition, whereas Article 7 sets out a list of ‘negative conditions’.28

23 Garcimartín and Saumier (n 16) para 123. 24 See also Paul Beaumont, ch 6, section III.A and section III.B, in this volume. 25 Garcimartín and Saumier (n 16) para 121. 26 Weller (n 5) 283. 27 As noted by Brand (n 13) 878, the issue is basically whether the jurisdictional test is used as a gateway requirement to circulation, or as a ground for non-recognition. When the assessment of the jurisdiction of the court of origin serves as a ground for non-recognition, then the judgment debtor has the burden of proving the ground in order to obtain a decision of non-recognition. Instead, when the indirect jurisdiction requirement is a basis for circulation, it is for the judgment creditor to show that the judgment passes the test. In this respect, Brand observes, recognition under the Convention proves more difficult for a judgment creditor than recognition under the domestic rules of some countries, such as the United States. This shortcoming can be avoided, in appropriate circumstances, by relying on such domestic rules, as permitted by Art 15. 28 cf Garcimartín and Saumier (n 16) para 97.

The Jurisdictional Filters  47

III. Taxonomy A dozen jurisdictional filters are listed in Articles 5 and 6 of the HCCH 2019 Judgments Convention, covering a broad range of situations.29 They can be grouped into three categories, based on the main policy considerations on which they rest. The first category consists of ties between the person against whom recognition is sought and the State of origin of the judgment, such as the person’s habitual residence in that State. The bases in this group are general in scope, in the sense that they apply, subject to Article 5(3) and Article 6, to any judgment within the purview of the Convention, regardless of the subject matter of the dispute. The filters in this group rest, generally, on the traditional association of adjudicatory jurisdiction with power.30 The exercise of a State’s jurisdiction is deemed to be fair and reasonable where it is directed towards persons within the reach of that State’s sovereign prerogatives, ie, broadly speaking, someone whose personal connections are primarily with the territory, the population, or the economy of the State in question. The jurisdictional requirements in the second group apply, instead, to judgments that relate to specific subject matters.31 For instance, Article 5(1)(h) refers to judgments that ruled on a (nonresidential) lease of immovable property, whereas Article 5(1)(j) is concerned with judgments regarding non-contractual obligations arising, inter alia, from death and physical injury. The underlying idea, here, is that it is reasonable for the courts of a State to assert their jurisdiction over claims that display an objective and meaningful connection with that State. Litigation at the place where the cause of action arose can prove particularly efficient and convenient. Evidence is likely to be found in that place, and local courts are presumably in a good position to assess the legal aspects of, and the social and economic background to, the dispute. Moreover, litigation in the State with which the claim is objectively connected does not involve, as such, a preferential treatment for any of the litigants, and should not come as a surprise to any of the parties.

29 However broad, the list fails to include some jurisdictional bases that are relatively common in international instruments. For instance, no reference is made to the case where a court seised of claims against multiple defendants asserted its jurisdiction over all of them based on a concern for the concentration of litigation and decisional harmony (as envisaged, eg, under Art 8 point 1 of the Brussels Ibis Regulation). Jurisdiction based on necessity, or forum necessitatis, as is found, for instance, in Art 3 of the Swiss Federal Statute on Private International Law) similarly falls outside the list of eligible bases provided in the Judgments Convention. Consensus regarding these and other controversial jurisdictional bases would have been difficult, or impossible, to achieve; see C Kessedjian, ‘Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?’ (2020) 1 Nederlands Internationaal Privaatrecht 19, 30 ff. 30 See generally, and for further references, P Franzina, ‘The Changing Face of Adjudicatory Jurisdiction’ in S Forlati and P Franzina (eds), Universal Civil Jurisdiction: Which Way Forward? (Brill 2020). 31 The boundaries between this category and the previous one may appear to be blurred in some cases. Art 5(1)(b), for example, builds on the personal ties between the person against whom recognition and enforcement are sought and the State of origin of the judgment, namely, the fact that the natural person in question ‘had their principal place of business’ in that State. It might look similar to Art 5(1)(d), which provides for the recognition of judgments rendered in the State where the defendant maintained a branch, insofar as the judgment ruled on a claim that ‘arose out of the activities’ of that branch. The two provisions, it is contended, should not be subsumed under the same category. The rule on branch jurisdiction rests primarily on the ties between the subject matter of the dispute and the State where the branch concerned was maintained, and should accordingly be treated as a basis grounded on proximity, rather than on personal ties. The language of Art 5(1)(d) reflects this understanding where it refers to the ‘defendant’, rather than the ‘person against whom recognition or enforcement is sought’. This means that, unlike Art 5(1)(b), the authority of a judgment emanating from the State of the branch may be invoked against anybody concerned, ie, the defendant, the claimant and such third parties as may have joined the proceedings. Put another way, the Convention regards the connection between the dispute and the State of the branch as a connection that warrants recognition of the judgments given in the latter State against anybody involved in the case, irrespective of the ties, if any, between the person against whom recognition is sought and the State of origin of the judgment.

48  Pietro Franzina The third and final group of jurisdictional bases in the Convention refers to judgments given by a court whose jurisdiction was either agreed upon by the parties or was accepted by the person against whom recognition is sought. These filters, too, like those in the first group, are of general application, in the sense that they operate, in principle, to any judgments within the scope of the Convention, subject to Article 5(3) and Article 6. Apart from specific areas of law (which, incidentally, lie outside the scope of the Convention, such as personal capacity or filiation), consent is generally deemed to be a fair and reasonable ground for jurisdiction, provided that appropriate safeguards are in place that ensure that the concerned parties consented in fact to jurisdiction (and did so freely), or that the defendant may otherwise be deemed to have accepted jurisdiction in a manner that complies with the requirements of fairness. The conditions subject to which jurisdiction may rest on the interested party’s consent, express or implied, often reflect a concurrent concern for procedural efficiency and decisional harmony. For example, as will be seen below, a failure by the defendant to contest the jurisdiction of the seised court may, in some circumstances, constitute a proper basis of jurisdiction. Such a failure does not have to reflect a conscious and deliberate intention on the part of the defendant to submit to the jurisdiction of the court in question. Still, procedural efficiency dictates that, in appropriate circumstances, jurisdiction may be asserted on the ground of a failure to raise a timely objection to jurisdiction, when the defendant appeared before the court of origin.

IV.  The Filters in Detail A.  Jurisdictional Filters based on Personal Ties i.  Habitual Residence of the Person against whom Recognition is Sought According to Article 5(1)(a) of the HCCH 2019 Judgments Convention, a judgment is eligible for recognition and enforcement if ‘the person against whom recognition or enforcement is sought was habitually resident in the State of origin at the time that person became a party to the proceedings in the court of origin’.32 Depending on the circumstances, the ‘person against whom recognition or enforcement is sought’ can be the original defendant or any third party having joined the proceedings at a later stage, either at the request of an original party or by their own request. The term may also refer to the plaintiff insofar as the judgment ruled against the latter, as it may occur where a counterclaim lodged by the defendant was eventually deemed to be well founded. The person against whom recognition is sought will normally be among the persons who took part in the proceedings in the State of origin. However, the provision also applies where recognition is sought against such third party as may have ‘assumed’ the obligations of an original

32 Similar rules are found in numerous texts, domestic and international, dealing with the recognition and enforcement of judgments, or laying down rules on direct jurisdiction. See, for instance, Art 20(1) of the Minsk Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family, and Criminal Matters, translated in J Basedow et al (eds), Encyclopedia of Private International Law (Edward Elgar 2017) 4011. See also s 5(1)(d) of the Model Law on the Recognition and Enforcement of Foreign Judgments adopted by the Commonwealth Secretariat in 2018 (hereafter, the Commonwealth Model Law): ‘A court in the state of origin is deemed to have had jurisdiction if: … (d) the judgment debtor, being an individual, was ordinarily resident in the State of origin’, available at: thecommonwealth.org.

The Jurisdictional Filters  49 party, for example, following a merger.33 The question may arise, in this occurrence, whether the obligations stemming from the judgment have validly passed on to the third party in question. The issue must be settled in accordance with the law of the requested State, including its private international law rules.34 The term ‘habitual residence’ is defined in the Convention only as regards entities or persons other than a natural person, such as corporations, associations or foundations.35 According to Article 3(2), an entity or person other than a natural person must be considered to be habitually resident in: (a) the State where it has its statutory seat, as determined by its constituent documents and bylaws,36 in accordance with the applicable law; (b) the State under whose law the entity or person was incorporated or formed; (c) the State where the entity has its central administration, meaning the place where the head office functions are located and the key decisions on the running of the entity are made;37 or (d) the State where the entity or person has its principal place of business, ie, the principal centre of the entity’s economic activities (the ‘muscles’ of the entity as distinct from the entity’s ‘brain’, which corresponds to its central administration).38 The above four localities have equal weight and apply concurrently. One entity may accordingly have two or more habitual residences for the purpose of the Convention, as it occurs, for instance, where the entity’s statutory seat is in one State and its central administration is in another. A judgment given against an entity with this characteristic will meet the requirement in Article 5(1)(a) whether rendered in the former State or in the latter. No explicit indication is provided in the Judgments Convention as regards the habitual residence of natural persons.39 Several instruments adopted under the auspices of the Hague Conference on Private International Law refer to habitual residence.40 None of them, however, comes with an explicit definition of the term as regards natural persons. The generally accepted view is that the habitual residence of a natural person is where that person’s interests, whether personal or financial in nature, are centred.41 It is ‘a factual concept denoting the country which has become the focus of the individual’s domestic and professional life’.42 The mere presence of the person concerned on the territory of the State in question is not enough.43 Several indicia may need to be considered for determining the habitual residence of a natural person, especially if that person’s interests are spread in fact over two or more States.44 This may 33 Garcimartín and Saumier (n 16) para 144. 34 ibid. As noted by Weller (n 5) 286, the transfer may accordingly need to be assessed, for the purposes of recognition, based on a law other than the law contemplated by the persons involved in the transfer itself. A reference to the parties’ expectations, the latter author suggests, ‘might have been preferable in order to avoid unwanted denials of recognition and enforcement’ under Art 5(1)(a). 35 The definition of ‘habitual residence’ found in the HCCH 2019 Judgments Convention corresponds to the definition of ‘residence’ featured in Art 4(2) of the HCCH 2005 Choice of Court Convention. 36 Garcimartín and Saumier (n 16) para 106. 37 ibid, para 107. 38 ibid. 39 The same is true of the HCCH 2005 Choice of Court Convention. 40 See, eg, among those already named in this chapter, the HCCH 1970 Divorce Convention; the HCCH 2007 Child Support Convention; and the HCCH 2005 Choice of Court Convention. 41 cf A Bonomi, ‘Courage or Caution? A Critical Overview of the Hague Preliminary Draft on Judgments’ (2015/16) 17 Yearbook of Private International Law 1, 13. 42 Permanent Bureau of the Hague Conference on Private International Law, Guide to Good Practice No 1: The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention (Jordan Publishing 2008) para 490. 43 cf S Khanderia, ‘The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?’ (2019) 63 Journal of African Law 413, 418 f and 424, distinguishing habitual residence from ‘mere presence’, as understood in South African private international law. 44 See further on this issue Yekini (n 11) 198 f.

50  Pietro Franzina be the case of someone who commutes between one country, where he carries out his professional activity, and another, where he spends time with his family during weekends. The key element is, arguably, whether, and by which degree of intensity, the person’s presence in a State signals that person’s integration in the State in question. Generally speaking, habitual residence in a State builds on ties that, because of their strength and duration, can be said to be socially meaningful. The habitual residence of a natural person being the ‘centre’ of his or her interests, no person – it is argued – may be considered to possess more than one habitual residence at a time.45 Habitual residence moves from one State to another as soon as the interests of the person in question move from the former to the latter in a way that signifies that the person’s ‘centre of gravity’ has shifted. A sudden and unequivocal change in the location of the person’s interests may accordingly entail an immediate transfer of that person’s habitual residence. By contrast, where the relevant circumstances evolve gradually, no transfer occurs until such time as the person’s interests in the new State become predominant. The requirement in Article 5(1)(a) is met if the habitual residence of the person against whom recognition is sought was in the State of origin ‘at the time that person became a party to the proceedings’ which resulted in the judgment. Absent a definition in the Convention, the relevant moment, it is contended, must be determined having regard to the procedural law of the State of origin.46 A later change of the person’s habitual residence has no bearing on the operation of Article 5(1)(a).

ii.  Place of Business of the Natural Person against whom Recognition is Sought According to Article 5(1)(b), a judgment qualifies for recognition under the HCCH 2019 Judgments Convention if ‘the principal place of business of the natural person against whom recognition or enforcement is sought’ is in the State of origin. For the provision to apply, the judgment must relate to a claim that arose ‘out of the activities of that business’, such as a contract concluded in connection with the person’s business, or a tort committed by that person in their capacity as a businessperson. The dispute, however, does not have to relate to acts performed or which occurred in the State of origin.47 Judgments relating to claims arising out of personal

45 Referring to EU legislation, the European Court of Justice held that a person who divides his or her time between two States may have his or her habitual residence in only one of those States: Case C-289/20 IB v FA, ECLI:EU:C:2021:955, para 62. It is unclear whether the same is true under the Hague Conventions that employ the concept. In assisting the Special Commission of 2016 charged with discussing the Judgments Project, the Permanent Bureau of the Hague Conference expressed the view that it is possible for natural persons to have more than one habitual residence, or to have no habitual residence: Explanatory Note Providing Background on the Proposed Draft Text and Identifying Outstanding Issues (Prel Doc No 2 of April 2016) para 76, available at: hcch.net. The Permanent Bureau, however, refrained from advocating the above approach in respect of other instruments elaborated in the framework of the Hague Conference that similarly refer to habitual residence, such as the HCCH 1993 Interrcountry Adoption Convention: cf Permanent Bureau of the Hague Conference on Private International Law, Habitual Residence and Scope of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (HCCH 2018). 46 One provision in the Convention explicitly refers to the law of the State of origin for the purposes of assessing compliance with procedural requirements in connection with time, namely Art 5(1)(f), whereby submission occurs if the defendant took part in the proceedings but failed to contest the jurisdiction of the seised ‘within the timeframe provided in the law of the State of origin’. Admittedly, the issue is slightly different here. However, given the differences among national procedural rules, a reference to the rules in force in the State of origin would seem to be convenient in this context, too: the proceedings in the State of origin may just not fit into the schemes contemplated by the law of the State where the effects of the judgment are relied upon. 47 Yekini (n 11) 199.

The Jurisdictional Filters  51 and other non-business activities lie outside the scope of the rule. Arguably, Article 5(1)(b) does not apply to judgments concerning ‘mixed’ activities, unless the non-business activities involved are negligible. Article 5(1)(b) represents a specification, or adaptation, of the rule in Article 5(1)(a). The place of business of a natural person who carries out a business activity performs substantially the same task as the localities where a corporation or other entity is deemed to have its ­habitual residence pursuant to Article 3(2). Arguably, a ‘place of business’ within the meaning of Article 5(1)(b) is a place where the concerned person’s business is visibly conducted, such as a place where they meet clients, partners, or collaborators, or a place that is usually presented as that person’s base or site of operation.48 Only the ‘principal’ place of business matters for the purposes of recognition under the Convention. Secondary places have no bearing on the operation of Article 5(1)(b), regardless of whether the judgment ruled on acts or facts concluded or committed in such a secondary place, or was otherwise connected with activities carried out there. The principal place of business of a person may of course change over time. For the purposes of Article 5(1)(b), regard must be had to the person’s principal place of business ‘at the time that person became a party to the proceedings in the court of origin’. It is immaterial whether the person in question had his or her principal place of business there also at the time when the cause of action arose. The ties that matter, under Article 5(1)(b), are between the person against whom recognition is sought and the State of origin of the judgment, not the ties between the latter State and the subject matter of the dispute.

B.  Jurisdictional Filters Consisting of Objective Connections i.  Location of a Branch, Agency or Other Establishment of the Defendant Article 5(1)(d) of the HCCH 2019 Judgments Convention provides that a judgment is eligible for recognition if it ruled against a defendant who ‘maintained a branch, agency, or other ­establishment without separate legal personality in the State of origin’, provided that ‘the claim on which the judgment is based arose out of the activities of that branch, agency, or establishment’.49 The provision builds on the assumption that the claims arising out of the activities of a branch of that person normally feature a close connection with the State where the branch in question is maintained. The Convention does not define the terms ‘branch’, ‘agency’ or ‘establishment’. The three ­expressions appear to refer to any local division of an organisation, as distinct from the 48 A different reading of the term ‘place of business’, it is submitted, would hardly be consistent with the concerns for fairness and predictability that underlie the Convention. The place where the person in question runs their business should not matter for the purposes of (indirect) jurisdiction unless it can be objectively regarded as the person’s ‘seat’ or centre of operation. 49 The provision echoes the rule of direct jurisdiction that is found in Art 7 point 5 of Regulation (EU) No 1215/2012. Under the latter provision, a person domiciled in a Member State of the EU may, as concerns disputes ‘arising out of the operations of a branch, agency or other establishment’, be sued in another Member State ‘in the courts for the place where the branch, agency or other establishment is situated’. See also s 5(a)(5) of the US Foreign-Country Money Judgments Recognition Act, drafted by the Uniform Law Commission, available at: www.uniformlaws.org, whereby a foreigncountry judgment may not be refused recognition for lack of personal jurisdiction if, among other cases, the defendant ‘had a business office in the foreign country’ and the proceedings in the foreign court involved a cause of action ‘arising out of business done by the defendant through that office in the foreign country’.

52  Pietro Franzina organisation’s main offices or central administration, provided that the operation of the local division concerned is not occasional, and that the division presents itself as endowed with some autonomy. The subsidiaries of a business, insofar as they have a distinct legal personality from the mother company, do not fit into the category.50 The situation where a subsidiary of the defendant acted as an establishment of the latter, and the other party relied on the appearance thus created, may arguably be regarded as falling within the scope of Article 5(1)(d), provided that the other party was not negligent in relying on such an appearance, and the defendant contributed, by omission as the case may be, in creating the false impression.51 Indeed, if the appearance resulted from the defendant’s acts or omissions, litigation at the place where the defendant appeared to be operating would hardly be improper, it is contended, for the purposes of recognition.52 A natural person who runs a business activity may also have a branch, an agency, or an establishment within the meaning of Article 5(1)(d), insofar as the activity is conducted, with some stability, in places other than the principal place of business of the natural person in question, as understood by Article 5(1)(b).53 For Article 5(1)(d) to apply, the judgment must have ruled on a claim relating to the operation of the branch, agency or establishment maintained by the defendant in the State of origin, such as a claim arising out of a contract that was either concluded through, or performed by, a local division in that State, or a claim in tort for acts committed by the defendant through a branch in the latter State. The territorial organisation of the defendant may change over time. The defendant may decide to close the branch it used to run in one State, and open a new one in another. Compliance with Article 5(1)(d) requires that the defendant maintained a local division in the State of origin at the time it became a party to the proceedings in that State. Thus, if a claim arising out of the activities of a branch located in State A were initiated in State A only after the closure of that branch, the resulting judgment will not be eligible for recognition under Article 5(1)(d). The reasons for this limitation are unclear. If proximity were all that matters, then the existence of an objective connection between the dispute and the State of origin would normally suffice, and later changes should be disregarded. The Convention, instead, treats the jurisdictional basis in Article 5(1)(d) as a quasi-general ground for jurisdiction. For the judgment to circulate on this basis, the court of origin must feature a twofold connection with the case: an objective connection, for it must be established that the claim arose from the operation of a branch in the State where the judgment was rendered; and a personal connection, meaning that it must be shown that, at the time when the proceedings were brought, the defendant’s branch in the State of origin was still in operation.

50 Garcimartín and Saumier (n 16) para 157. 51 See further, on this scenario, Yekini (n 11) 202 ff. 52 The European Court of Justice, referring to the rule that is now enshrined in Art 7 point 5 of the Brussels Ibis Regulation, held that the latter rule applies to a case in which ‘a legal entity established in a State maintains no dependent branch, agency or other establishment in another State but nevertheless pursues its activities there through an independent company with the same name and identical management which negotiates and conducts business in its name and which it uses as an extension of itself ’: Case 218/86, SAR Schotte GmbH v Parfums Rothschild SARL, ECLI:EU:C:1987:536, para 17. 53 Garcimartín and Saumier (n 16) para 157.

The Jurisdictional Filters  53

ii.  Place of Performance of the Contractual Obligation in Question Pursuant to Article 5(1)(g), a judgment that ruled on a ‘contractual obligation’ qualifies for recognition and enforcement under the Judgments Convention ‘if it was given by a court of the State in which performance of that obligation took place, or should have taken place’. The rule applies to any contract within the material scope of the Convention,54 save for a few exceptions. As stated in Article 5(2), the jurisdictional basis in Article 5(1)(g) is of no avail as regards judgments relating to consumer and employment contracts, insofar as recognition is sought against a consumer or an employee, respectively.55 In addition, Article 5(3) stipulates that Article 5(1)(g) is inapplicable to judgments that ruled on a residential lease of immovable property. Only the obligation ‘in question’ matters for Article 5(1)(g). Thus, if the judgment whose recognition is at stake results from proceedings brought by an unpaid seller of goods against the buyer, the issue, under Article 5(1)(g), is whether the buyer ought to have paid the goods in the State of origin of the judgment. Whether the goods were delivered in the same State is immaterial. Conversely, it is the place of delivery that matters if the judgment is one obtained by the buyer on the ground that the goods did not conform with the contract. For the purposes of Article 5(1)(g), the place of performance is to be determined in accordance with the ‘agreement of the parties’, or, if no such agreement exists, with the law applicable to the contract. The parties’ agreement may consist in a clause whereby a party undertakes to discharge its obligations at a given place (eg, a clause in a sale of goods whereby delivery is to occur at the warehouse of the buyer, or at a particular airport).56 The ‘law applicable to the contract’ refers, depending on the circumstances, to the law of the State specified under the conflict of laws rules of the requested State,57 or to such other rules of law as the requested State regard as applicable to the contract, including, where appropriate, those laid down in the UNCITRAL 1980 (Vienna) Convention on Contracts for the International Sale of Goods.58 The place of performance of the obligation in question, as determined from the standpoint of the requested State (ie, through the conflict of laws rules of that State or in accordance with the uniform substantive rules in force

54 Art 2(1)(f) excludes ‘the carriage of passengers and goods’ from the scope of the Judgments Convention. The ­exclusion of ‘sovereign debt restructuring through unilateral State measures’, pursuant to Art 2(1)(q), has similarly an impact on the scope of Art 5(1)(g), insofar as sovereign debt is based on contractual instruments and results in obligations of a contractual nature. 55 Art 5(2) refers to a consumer as a ‘natural person acting primarily for personal, family or household purposes’. See further on this notion, N de Araujo and M de Nardi, ‘Consumer Protection Under the HCCH 2019 Judgments Convention’ (2020) 67 Netherlands International Law Review 67, 72 ff. On the notion of employment contracts, see Garcimartín and Saumier (n 16) para 223 f. 56 The Convention does not specify whether the agreement of the parties is relevant, for the purposes of Art 5(1)(g), where it points to a place of performance that has no meaningful link to the actual place of performance. According to M Poesen, ‘Is Specific Jurisdiction Dead and Did We Murder It? An Appraisal of the Brussels Ia Regulation in the Globalizing Context of the HCCH 2019 Judgments Convention’ (2021) 26 Uniform Law Review 1, 10, an affirmative answer is possible, subject to the safeguard examined below. See also, apparently along the same lines, Yekini (n 11) 209. 57 If the conflict of law rules of the requested State provide that the parties to a contract may designate the law applicable to their contract by agreement, and the parties have availed themselves of such a possibility, then the existence, the validity and the interpretation of the parties’ agreement on the place of performance will need to be determined in accordance with the law chosen by the parties. Absent a choice of law, the law that governs the contract (and, within the contract, in the case of dépeçage, the agreement of the parties regarding the place of performance) will be identified through the objective connecting factors contemplated in the pertinent conflict of law rules of the requested State. 58 United Nations Convention on Contracts for the International Sale of Goods, Vienna, 11 April 1980, UNTS 1489, 3.

54  Pietro Franzina therein), may differ from the place of performance as identified by the court of origin, based on its own rules. Thus, a judgment given in State A on the ground that the obligation in question ought to be performed in State A, will not qualify for recognition and enforcement in State B under Article 5(1)(g) of the HCCH Judgments Convention if performance of that obligation, according to the rules of State B, including its conflict of laws rules, should rather occur in State B or State C. As said, the provision refers separately to the agreement of the parties on the place of performance and to the place of performance as determined by the applicable rules. Legal standards only get into the picture if it is established that the parties failed to agree on where performance should be effected. Arguably, however, an agreement on the place of performance should not be taken into consideration for the purposes of Article 5(1)(g) unless it complies with the law, or the rules of law, that apply to the contract.59 Thus, the place where performance factually occurred, as distinct from the place in which performance ought to have occurred based on the parties’ agreement or the applicable rules, is irrelevant as such to Article 5(1)(g).60 Of course, circumstances may exist where performance at a place other than the place where performance was originally expected to occur may be deemed to be consistent with the agreement or the rules that govern the substance of the contract, notably on the ground of the other party’s actual or presumed acquiescence to the change. Insofar as the applicable law, or rules of law, give effect to acquiescence, the place where performance actually occurred will be regarded as the place of performance of the obligation in question for the purposes of Article 5(1)(g). Article 5(1)(g) comes with a safeguard. Compliance with the agreement of the parties, or with the applicable substantive rules, may not be enough to make the judgment eligible for recognition if ‘the activities of the defendant in relation to the transaction clearly did not constitute a purposeful and substantial connection’ to the State where the obligation in question was performed or ought to be performed. The provision underlies a concern that performance, used as a connecting factor, could ‘point to a place that is arbitrary, random or insufficiently related to the transaction between the parties’.61 Whenever the relevant legal factors lead to a place that is not sufficiently connected with the facts of the case, Article 5(1)(g) may be disregarded, meaning that the requested State is no longer bound to recognise a judgment given in the State of performance.62 The complex layout of Article 5(1)(g) reflects a compromise between opposing views as to what constitutes a fair jurisdictional ground in matters relating to a contract.63 In several countries, mostly in Continental Europe, Latin America and North East Asia, performance of either the disputed or the characteristic obligation on the territory of the

59 cf Garcimartín and Saumier (n 16) para 182, noting that ‘it is very common that the place of performance is included among the general contractual conditions of one or both parties’, and adding that the validity of such conditions ‘will be determined by the law of the requested State, including its private international law rules’. 60 Garcimartín and Saumier (n 16) para 182; and Weller (n 5) 297. See also H Jacobs, Das Haager Anerkennungs-und Vollstreckungsübereinkommen vom 2. Juli 2019 (Mohr Siebeck 2021) 226. 61 Garcimartín and Saumier (n 16) para 187. 62 The safeguard applies regardless of whether the parties agreed on the place of performance of the obligation in question. The place designated by the parties could, in fact, be in a State place that is arbitrary, or otherwise insufficiently related to the transaction from which the dispute arose. See R Brand and K Vandekerckhove, ‘Contract Jurisdiction’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 214. 63 See LE Teitz, ‘Another Hague Judgments Convention? Bucking the Past to Provide for the Future’ (2019) 29 Duke Journal of Comparative & International Law 491, 497, noting that the safeguard in Art 5(1)(g) reflects changes required in particular by the United States ‘to comply with constitutional requirements of due process’, thus necessitating an ‘activity basis’ in this filter.

The Jurisdictional Filters  55 forum State amounts to a proper jurisdictional basis.64 The same is true, with some variations, of some uniform texts, such as the Brussels Ibis Regulation or the 1994 MERCOSUR Protocol on Jurisdiction in Contractual Matters.65 By contrast, the rules of direct jurisdiction in force in the United States and Canada, among others, tend to give weight to the fact that the defendant carried on activities in the forum and that the contract from which the claim arose is related to such activities.66 The Judgments Convention, while relying on the former model as a point of departure,67 lays down a requirement inspired by the opposite approach, as a means to correct the perceived shortcomings of using purely legal standards.68 Unless the requested State provides otherwise, it is for the judgment debtor, at the stage of recognition and enforcement, to invoke the safeguard and demonstrate that the transaction between the parties did not feature a purposeful and substantial connection with the State of origin.69 The ‘purposeful and substantial’ connection required under Article 5(1)(g) relates to the ‘activities’ of the defendant. The Convention fails to specify the factors against which the connection in question is to be assessed.70 Arguably, regard must be had to acts or facts showing that the defendant made the forum State a target of its activities and engaged in dealings in this State that are of sufficient extent and intensity.71 Recognition may thus be denied, under the safeguard, on the ground that the defendant did not intend to direct his business towards the State where the obligation in question was or ought to be performed, or on the ground that his dealings in the latter State were occasional, sporadic or otherwise negligible. Only the activities of the defendant that relate to the ‘transaction’ concerned are to be taken into consideration for this assessment. A variety of factors may need to be considered for the purposes of determining whether the safeguard in Article 5(1)(g) ought to be triggered, or not. These include, it is submitted, whether the defendant acted in the State of origin through an occasional intermediary rather than someone permanently in charge of clients based in that State, or whether performance consisted in a

64 See, eg, Art 113 of the Swiss Federal Statute on Private International Law; Art 2058 of the Civil Code of Peru; Art 3-3(1) of the Japanese Code of Civil Procedure. 65 Protocol on International Jurisdiction in Disputes Relating to Contracts, Buenos Aires, 5 August 1994, UNTS, 2150, 142. 66 See generally, RA Brand and CM Mariottini, ‘Note on the concept of “Purposeful and Substantial Connection” in Article 5(1)(g) and 5(1)(n)(ii) of the February 2017 Draft Convention’, Prel Doc No 6 of September 2017, available at: hcch.net. Under the ‘minimum contact’ rule developed in the United States, jurisdiction over a contractual dispute may be asserted in one State on the ground that that the defendant purposefully availed itself of the protection of that State. The US Supreme Court held in Burger King Corporation v John Rudzewicz, 471 US 462 (1985), that the latter assessment involves considering circumstances such as the prior negotiations between the parties, the contemplated consequences of the contract, the terms of the contract itself, and the course of dealing between the parties based on, or in connection with, the contract in question’. 67 H Schack, ‘Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen’ (2020) 40 IPRax 1, 4. 68 Bonomi (n 41) 21 ff. 69 Brand and Vandekerckhove (n 62) 214. 70 The flexibility that this approach is intended to produce entails, of course, a risk of unpredictability, as stressed by several commentators: see, among others, A Bonomi and CM Mariottini, ‘(Breaking) News from The Hague: A Game Changer in International Litigation? Roadmap to the 2019 Hague Judgments Convention’ (2018/19) 20 Yearbook of Private International Law 537, 557. The experience of US courts with the ‘purposeful availment’ standard is the source of concerns precisely as regards predictability: see HS Noyes, ‘The Persistent Problem of Purposeful Availment’ (2012–13) 45 Connecticut Law Review 173, passim. 71 For an overview of the contacts used by courts in the United States to assert their jurisdiction in matters relating to contracts, see H van Lith, International Jurisdiction and Commercial Litigation (Asser 2009) 276 ff.

56  Pietro Franzina single act or rather involved some organised activity, such as the posting of employees in the State concerned. Regarding the scope of application of Article 5(1)(g), the Convention fails to define what is meant by ‘contract’. The notion, it is argued, should be construed autonomously, ie, independently from domestic law. Uniformity in the application of the Convention, as prescribed by Article 20, would hardly be achieved otherwise. Few indications, however, can be drawn from the object and purpose of the Convention, or its context, as regards the scope of the notion. The travaux préparatoires are not particularly helpful either. Experience with other uniform instruments which refer to ‘contracts’ and ‘contractual obligations’, such as the Brussels Ibis Regulation and its predecessors, show that doubts of characterisation may arise in this area in a range of situations. Under the Brussels I regime, for instance, doubts have been raised, inter alia, as concerns claims for damages based on a failure by one party to act in good faith in pre-contractual dealings,72 and as regards actions for relief based on unfair commercial practices implemented in the context of a contractual relationship between two businesses.73 It is unclear, at this stage, how the latter situations, and other cases in the grey area between contract and tort, ought to be characterised for the purposes of the Judgments Convention. The risk of divergent interpretations is in fact particularly high when it comes to purely legal notions, like the notion of contract. The Hague Conference has a decades-long experience in promoting the uniform interpretation of its own texts, notably by fostering the exchange of views and information between the Member States of the Conference itself, in particular in the framework of special commissions convened for this purpose.74 No such initiative, however, is expected to take place in the short term. Whatever the meaning of the term ‘contract’, Article 5(1)(g) is solely concerned with judgments that ruled on a contractual ‘obligation’, ie, judgments relating to claims based on alleged non-performance, or defective performance, of such obligations.75 Disputes over the very existence of a contract, or its validity, fall outside the scope of the provision. A judgment that includes both a finding that the contract is valid and a finding that a party breached a particular contractual obligation may thus be eligible for recognition under Article 5(1)(g) of the Convention only insofar as the latter finding (and the provisions based thereon) are concerned. Unless the remaining part of the judgment complies with another jurisdictional basis among those established in the Convention, the decision may eventually qualify for partial recognition pursuant to Article 9.76 Recognition under Article 5(1)(g) presupposes that the place of performance of the obligation in question, in the singular, is in the State of origin of the judgment. A judgment that ruled on a contractual dispute involving two or more obligations may thus qualify for recognition under Article 5(1)(g) only to the extent to which, based on Article 9, its provisions refer to

72 Case C-334/00, Fonderie Officine Meccaniche Tacconi SpA v Heinrich Wagner Sinto Maschinenfabrik GmbH (HWS), ECLI:EU:C:2002:499. 73 Case C-59/19, Wikingerhof GmbH & Co KG v Booking.com BV, ECLI:EU:C:2020:950. 74 Regarding the work of the Conference aimed at the ‘maintenance’ of existing instruments see further, P Franzina, ‘Some Recent Trends Concerning the Work of the Hague Conference on Private International Law’ in Scritti in memoria di Maria Rita Saulle (Editoriale Scientifica 2014) 637, 640 ff. 75 This arguably includes judgments based on actions seeking a declaration that the obligations undertaken by the claimant have been fully and properly executed. 76 See Wolfgang Hau, ch 2, section II.C, in this volume.

The Jurisdictional Filters  57 obligations the performance of which occurred, or was expected to occur, in the forum State.77 The HCCH 2019 Judgments Convention does not appear to contemplate the particular situation that may arise where the agreement of the parties or the circumstances of the case indicate that one of the obligations in question is the main obligation arising from the contract, and the other obligations are merely ancillary to the latter. This is a scenario where, according to the rule that is now found in Article 7 point 1 of the Brussels Ibis Regulation, as interpreted by the European Court of Justice, the place of performance of the main obligation could be regarded as the proper venue of litigation also as concerns any ‘secondary’ obligations, regardless of their place of performance.78 The maxim whereby accessorium sequitur principale (the accessory follows its principal) can arguably provide a guideline in the context of the HCCH 2019 Judgments Convention, including where the different issue arises of determining, under Article 5(1)(g), the place of performance of one obligation, the performance of which is to be effected in two or more States.79 Negative obligations, ie, contractual duties to refrain from doing something (such as an obligation not to do business with the competitors of the other contracting party), may also prove difficult to localise.80 The parties’ agreement may provide or imply some specifications (for instance, an agreement not to compete may include, or involve, a reference to competition in a particular country). Absent an agreement, one should turn to the law governing the substance of the contract, which may indicate, based on the circumstances of the case or a legal fiction, that performance of the obligation in question is presumed to be due at a particular place.81

iii.  Location of the Property Serving as Security for a Contractual Obligation Article 5(1)(i) deals with judgments that ruled against the defendant on a contractual obligation secured by a right in rem in immovable property, such as a mortgage. The above judgments are eligible for recognition and enforcement under the Convention if, on the one hand, the property is in the State of origin and, on the other, the contractual claim was brought together with a claim against the same defendant relating to that right in rem. Article 5(1)(i) does not constitute an exception to Article 5(1)(g), on judgments relating to contractual obligations. Actually, a judgment concerning a contractual obligation may be recognised in accordance with Article 5(1)(g) no matter whether the obligation in question was secured by a right in rem in immovable property. The purpose of Article 5(1)(i) is, rather, to supplement Article 5(1)(g) where a security is involved. The understanding is that it is ­procedurally efficient to allow a contractual claim secured by a right in rem to be joined with a claim relating to that right in rem in the same proceedings, notably in those jurisdictions where the realisation of a security is necessarily administered by judicial authorities.82 The reason for

77 Garcimartín and Saumier (n 16) para 186. 78 Case 266/85, Hassan Shenavai v Klaus Kreischer, ECLI:EU:C:1987:11, para 19. 79 The European Court of Justice itself relied on that maxim in cases where performance of one obligation was required to occur in several places: see, also for further references, Case C-19/09, Wood Floor Solutions Andreas Domberger GmbH v Silva Trade SA, ECLI:EU:C:2010:137, para 30 ff. 80 Garcimartín and Saumier (n 16) para 186, acknowledging that the issue of negative obligations was briefly discussed during the Diplomatic Session that resulted in the adoption of the Convention but was eventually ‘left open for further analysis by courts and legal scholars’. 81 See further on the problem, F Garcimartín, ‘The Judgments Convention: Some Open Questions’ (2020) 67 Netherlands International Law Review 19, 29 ff. 82 Garcimartín and Saumier (n 16) para 192 (in the footnote).

58  Pietro Franzina this is that judgments that ruled on a right in rem in immovable property, including an in rem security over that property, come within the scope of Article 6. This means that they do not circulate under the Convention unless they originate in the State where the property is situated. As a means to mitigate the shortcomings that may arise from this state of affairs, Article 5(1)(i) ensures that a judgment which ruled on both the contractual obligation and the associated in rem security may travel across Contracting States as long as it was given in the State where the immovable concerned is located.

iv.  Place where the Act or Omission that Caused Harm Occurred Article 5(1)(j) deals with judgments that ruled on non-contractual obligations. The Convention fails to indicate what is meant by ‘non-contractual obligations’. The notion is an autonomous one,83 and basically appears to refer to obligations arising from torts.84 It is worth recalling at the outset that some non-contractual obligations fall outside the scope of the Judgments Convention.85 This is true, among others, of torts resulting in transboundary marine pollution and nuclear damage, as provided for in Article 2(1)(g) and (h), respectively. Competition torts, too, are largely excluded from the scope of the Convention. According to Article 2(1)(p), the Convention does not apply to anti-trust matters, except where the judgment is based on conduct that constitutes an anti-competitive agreement or concerted practice among actual or potential competitors to fix prices, make rigged bids, establish output restrictions or quotas, or divide markets by allocating customers, suppliers, territories or lines of commerce, and where such conduct and its effect both occurred in the State of origin.

Even within the scope of the Judgments Convention, the material scope of Article 5(1)(j) is limited. The provision only applies to judgments that ruled on obligations ‘arising from death, physical injury, damage to or loss of tangible property’. Thus drafted, the provision is likely to play a limited role, in particular, in commercial tort litigation, as this often revolves around economic and financial loss rather than personal injuries and damage to property.86 The applicability of Article 5(1)(j), by the way, cannot always be taken for granted in non-business contexts, where natural persons are involved. Take, for instance, the case of judgments that awarded damages to the victim of a traffic accident. They fall under Article 5(1)(j) to the extent to which the damages awarded relate to the physical injury suffered by the victim. But what if the judgment ruled on claims made by the victim’s relatives for the loss of a loved one, or, more generally, by secondary victims (ie, persons whose losses arise as a consequence of injuries suffered by another person)? The Explanatory Report observes that judgments based on the latter claim could not be covered by Article 5(1)(j) ‘because that provision excludes non-physical injuries and deals only with harm directly caused’. The Report, however, acknowledges that a different reading would also be plausible, namely that judgments on claims for dependants are included within Article 5(1)(j) on the ground that the latter explicitly refers to non-contractual obligations ‘arising from death’.87 83 Nielsen (n 22) 221. 84 The term ‘non-contratual obligations’ appears to have a broad meaning in itself. Apart from torts, it would appear to encompass, inter alia, obligations in connection with unjust enrichment and negotiorum gestio: cf Weller (n 5) 301. 85 As observed below in the text, Article 5(1)(j) is only concerned with rulings related to obligations arising from death, physical injury or damage to tangible property. It is hard to see how the latter conditions might be met in respect of noncontractual obligations other than those arising from a tort. See further, regarding non-contractual obligations under the HCCH 2019 Judgments Convention, Xandra Kramer, ch 1, section IV, in this volume. 86 Poesen (n 56) 12. 87 Garcimartín and Saumier (n 16) para 197, adding that the most appropriate interpretation ‘will need to be determined by courts applying the Convention, guided by the Convention’s objective of uniform application expressed in Article 20’.

The Jurisdictional Filters  59 The latter reading underlies a concern for the concentration of proceedings over connected claims and for the unitary treatment of the resulting rulings for the purposes of jurisdiction, consistent with the goals of the Convention, stated in the Preamble, to ‘facilitate the effective recognition and enforcement’ of judgments.88 To be eligible for recognition under Article 5(1)(j) the judgment must originate in the Contracting State where the act or omission directly causing the harm occurred, irrespective of where the harm itself took place.89 The provision distinguishes between the two constituent elements of a tort, namely the act or omission that caused the harm, and the harm itself. Jurisdiction based on the localisation of the former element is regarded by the Convention as proper. Judgments rendered by the courts of the State where the harm occurred, instead, do not qualify for recognition under Article 5(1)(j). They may still be eligible for recognition pursuant to other provisions in the Convention, or in ­accordance with the national law of the requested State, according to Article 15. By limiting the scope of Article 5(i)(j) to torts that resulted in bodily harm or affected tangible goods, and by providing for the exclusive relevance of the act or omission that directly caused the harm, the drafters of the Convention aimed to avoid some of the interpretive difficulties that surround domestic and uniform rules on direct jurisdiction in matters relating to torts.90 The wording of Article 5(1)(j) ‘eliminates any question as to whether continuing pain and suffering in the State of origin consequent to a physical injury suffered in another State is sufficient to satisfy the filter’, since the provision, by referring to the place where the act or omission causing the harm occurred, leaves no room for an alternative connection at the place of the ‘continuing injury’.91 Similarly, a judgment on a claim for product liability brought in the State where a physical injury occurred may not satisfy the filter in Article 5(1)(j) if the place of the act – the defective design or manufacturing of the product in question – must be understood to be in the State where the manufacturer is based.92 The application of Article 5(1)(j) may prove particularly difficult where the judgment ruled on a liability arising out of a failure to warn about the danger associated with a product. The Explanatory Report notes that it might be argued that the omission occurred at the place of injury, ie, where the product was sold or used, but it adds that, if the location of the omission is characterised as a question of law rather than fact in the requested State (which would seem sensible, given than an omission is by definition a failure to do something that a rule prescribes), then the scope of the provision may vary according to the way in which the question is resolved

88 See further, Jacobs (n 60) 232, expressing doubts as to the applicability of Article 5(1)(j) to judgments regarding claims by dependants regarding maintenance or funeral costs, while considering that it would be less problematic to apply the provision to judgments awarding damages to the secondary victims of an accident for the suffering experienced as a result of the death of a loved one. 89 The provision reflects the fact that, while some States regard the place of damage as a suitable jurisdictional basis in matters relating to tort, as it is notably the case under Art 7 point 2 of the Brussels Ibis Regulation, following the doctrine of ubiquity endorsed by the Court of Justice (see Case 21/76 Handelskwekerij GJ Bier BV v Mines de potasse d’Alsace SA, ECLI:EU:C:1976:166, para 19), other States take the view that only the place where the harmful act (or omission) occurred should be considered for the purposes of (both direct and) indirect recognition. See further Bonomi (n 41) 25 f. 90 Harmonisation in this area is regarded as difficult, since the law of tort jurisdiction follows patterns that vary significantly across the world: see R Mortensen, ‘Tort Jurisdiction’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 262 ff. 91 Garcimartín and Saumier (n 16) para 198. 92 ibid. The act or omission directly causing the harm may be located, in a product liability case, for example, regarding a defective car, at the place where the car was manufactured or designed, or where it was purchased, depending on the facts of the case, and the ground for the complaint (eg, a failure by the manufacturer or seller to adopt a particular safeguard, or to warn about a given risk): cf Yekini (n 11) 216.

60  Pietro Franzina in that State.93 The risk of national divergences in the interpretation of the Convention is, here, as under Article 5(1)(g) on contracts, conspicuous.

v.  Location of the Immovable Property in Question Various provisions, among those laid down in Articles 5 and 6, refer to judgments that ruled on matters relating to immovable property, ie, buildings, land and anything embedded, attached, or affixed to the earth.94 While the above provisions cover different situations, they all rest on the assumption that it is reasonable, or even ‘natural’, that disputes regarding immovable property be settled in the State where property is located.95 Two provisions apply to judgments concerning a lease of immovable property, or tenancy. One applies to judgments that relate to tenancies in general, while the other refers to judgments concerning a residential lease of immovable property, ie, ‘a contract for the use of living accommodation for personal, family or household purposes in exchange for rent’.96 According to Article 5(1)(h), a judgment that ruled on a tenancy, generally, is eligible for recognition and enforcement under the Convention if it was given in the State where the property is situated. Article 5(3) provides, instead, that judgments relating to residential tenancies enjoy recognition and enforcement under the Convention ‘only if ’ they were given in the State where the property is situated. The latter provision also applies to judgments regarding the registration of immovable property, such as a judgment ordering the registration of a transfer of such property in the context of a dispute between the buyer of the property and the seller.97 In practice, a judgment rendered in a Contracting State in respect of a residential lease or the registration of immovable property, cannot be recognised and enforced, under the Convention, on the ground that the State of origin is, say, the State of habitual residence of the person against whom recognition is sought, or on the ground that the defendant submitted to the jurisdiction of that State. That said, unlike Article 6, Article 5(3) does not prevent the courts of the requested State from relying on their national law for the purposes of recognition, as provided by Article 15. Article 6 of the Judgments Convention deals with judgments that ruled on rights in rem in immovable property. The latter judgments must be recognised and enforced in a Contracting State ‘if and only if the property is situated in the State of origin’. When it comes to judgments within the scope of Article 6, the authorities of the Contracting States are under a twofold preclusion: they cannot rely on any other provision in the Convention for the purposes of recognition, and they cannot resort to their domestic rules on the recognition of judgments, notwithstanding Article 15. The term ‘rights in rem’ is understood to refer to any rights that directly concern an immovable property and are enforceable erga omnes, ie, towards everybody, as is the case with ownership,

93 Garcimartín and Saumier (n 16) para 198. For further discussion, see Jacobs (n 60) 234. 94 Garcimartín and Saumier (n 16) para 236. 95 Several legal texts relating to the recognition and enforcement of foreign judgments include provisions that build on the same assumption. See, for instance, Art 5(8)(a) of the Agreement between the Australia and New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement (n 1), whereby registration of judgments ‘given in an action where the subject matter is immovable property’ may be set aside in the registering court on the ground that the property in question was not situated within the territory of the State of origin. 96 Garcimartín and Saumier (n 16) para 228. 97 ibid, para 229.

The Jurisdictional Filters  61 usufruct or servitudes.98 The notion should be given an autonomous meaning, ‘focusing on the effects of the right under the law of the State where the immovable property is situated’.99 Article 6 only applies to judgments the object of which is a right in rem, such as judgments that ruled on the existence, extent and content of a right in rem, and judgments that provide the holders with the protection of the powers attached to their entitlements. Judgments that relate to an immovable property, but do not concern any rights in rem therein, lie outside the scope of Article 6. This applies, for example, to a judgment whereby the seller of a property is found to be in breach of its obligation to carry out the acts necessary to the transfer of the property.100 The Convention fails to specify whether the prohibition in Article 6 also applies in situations involving a State that is not bound by the HCCH 2019 Judgments Convention. Two situations should be distinguished in this regard. The first situation is where a judgment, given in a Contracting State, ruled on a right in rem in immovable property located in a non-Contracting State. The Contracting States are neither required by the Convention to recognise or enforce such a judgment, nor are they prevented, under the Convention, from resorting to their national law for this purpose.101 The reasons for this reading, put shortly, are as follows: Article 6 is an exception to the rule whereby judgments given in a Contracting State qualify for recognition in another Contracting State if any of the filters laid down by Article 5 are met; for its part, Article 5 is not concerned with judgments having a right in rem over immovable property as their object. All in all, Article 6 does not create an obligation towards non-Contracting States, and it only applies – in its positive as well as in its negative aspect – where the property concerned is in a Contracting State. The second situation occurs where the issue arises in a Contracting State of the recognition of a judgment given in a non-Contracting State regarding the rights in rem in immovable property situated in another State, one that is bound by the Convention. As indicated in Article 1(2), the Judgments Convention applies to the recognition and enforcement in one Contracting State of a judgment given by a court in another Contracting State. It is not concerned with the recognition and enforcement of judgments given in non-Contracting States. Accordingly, the requirements laid down by the Convention are of no avail for determining whether a judgment like the one considered above ought to be recognised. The matter is left with national law. In most countries, domestic rules provide that a similar judgment does not qualify for recognition. That said, if they were to give effect to the judgment in question, one may wonder, in the words of the Explanatory Report, whether it would be ‘coherent for a Contracting State to recognise and enforce such a judgment, given the policy and objectives of the Convention’.102 Arguably, if a State were to disregard this call for coherence, and in fact recognised the judgment in question, this would not amount to a breach of the Convention. As any international treaty, the HCCH 2019 Judgments Convention must be interpreted and applied in good faith, having regard to its object and purpose, but this does not mean that a Contracting State, absent a clear prohibition, should be precluded from resorting to its own domestic rules only because the practical result of the application of such rules would not accord with the policies of the Convention.



98 ibid,

para 234.

100 ibid,

para 235. para 242. para 243.

99 ibid.

101 ibid, 102 ibid,

62  Pietro Franzina

vi.  Principal Place of Administration or Other Connections of a Trust Judgments relating to trusts form the object of Article 5(1)(k). The term ‘trust’ is not defined in the Judgments Convention. The notion should be construed autonomously. The drafters of the Convention were aware of the definition in the HCCH 1985 Trusts Convention. Arguably, the latter definition provides guidance in the context of the Judgments Convention, too. As stated in Article 2 of the Trusts Convention, the term ‘trust’ refers to the ‘legal relationships created – inter vivos or on death – by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or for a specified purposes’.103 Article 5(1)(k) of the Judgments Convention only applies to judgments that concern the ‘validity, construction, effects, administration or variation of a trust created voluntarily and evidenced in writing’, provided that the judgments themselves relates to the ‘internal aspects’ of the trust ‘between persons who are or were within the trust relationship’. Judgments based on claims brought by the beneficiaries of a trust against the trustee regarding a breach of his or her fiduciary duties would thus fall within the scope of the provision, whereas a ruling on the trustee’s liability to a third party in respect of transactions concluded in the course of the administration of the trust would not. Trusts-related judgments qualify for recognition and enforcement under Article 5(1)(k) if the State of origin was either ‘designated in the trust instrument as a State in the courts of which disputes about such matters are to be determined’, irrespective of whether the designation was exclusive or not, or it was ‘expressly or impliedly designated in the trust instrument as the State in which the principal place of administration of the trust is situated’. Both conditions are to be assessed having regard to the time at which the proceedings were instituted. When determining the principal place of administration of a trust, the court of the requested State may need to look at the terms of the trust instrument, taken as a whole.104 Regard may be had, for example, to the fact that the trustees, where they were specified in the trust instrument, are based in a given State, or to the fact that the particular purpose for which the trust was created, specified in the instrument itself, was meant to be pursued in a particular State,105 such as the funding of new acquisitions by a museum designated in the trust deed.

C.  Jurisdictional Filters Grounded on Consent i.  Consent on the Part of the Losing Claimant Pursuant to Article 5(1)(c) of the HCCH 2019 Judgments Convention, a judgment is eligible for recognition and enforcement under the Convention ‘if the person against whom recognition or enforcement is sought is the person that brought the claim, other than a counterclaim, on which the judgment is based’. The assumption, here, is that the claimant, by initiating proceedings before the courts of a State, unequivocally accepted the jurisdiction of those courts. Whether or not the claimant had the option of bringing the claim elsewhere, the fact that the proceedings were started in

103 Art 2 of the HCCH 1985 Convention goes on to state that a trust has the following characteristics: the assets constitute a separate fund from the trustee’s own estate; title to the trust assets stands in the name of the trustee or in the name of another person on behalf of the trustee; the trustee has the power and the duty to manage, employ or dispose of the assets in accordance with the terms of the trust and the special duties imposed upon him by law. See further, J Harris, ‘Trusts’ in P Beaumont and Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 324 ff. 104 Garcimartín and Saumier (n 16) para 204. 105 ibid, para 205.

The Jurisdictional Filters  63 the State of origin make such State a suitable venue for litigation for the purposes of recognition, whenever recognition is sought against the claimant. The provision will likely be relevant in practice where the proceedings that resulted in the judgment were brought in a State other than the State of the claimant’s own habitual residence. If the claimant had seised the courts of his own State, a judgment against him would in fact already pass the Article 5(1)(a) test. The question has been raised of whether Article 5(1)(c) is available for judgments given against claimants in a collective action,106 insofar as ‘absent’ class members are concerned, ie, members of a class who are not directly involved with the litigation, but are nevertheless bound, in principle, by a judgment or settlement resulting from the action.107 The question, it is contended, should be answered in the affirmative. That said, a judgment against absent class members could rather be denied recognition and enforcement on grounds of procedural public policy, given the purely nominal participation of such class members in the proceedings.108

ii.  Consent on the Part of the Defendant Article 5(1)(e) provides that a judgment qualifies for recognition and enforcement under the Convention if the defendant ‘expressly consented to the jurisdiction of the court of origin in the course of the proceedings in which the judgment was given’. The rules that govern the proceedings in the State of origin are not relevant, as such, to the operation of Article 5(1)(e). They merely represent the background against which the requested court must assess whether the defendant in fact submitted to the jurisdiction of the court of origin. Put another way, the issue is whether – apart from the peculiarities of the procedural law of both the State of origin and the requested State – the defendant may be considered to have expressly accepted that the dispute be settled by the court seised. The Convention does not clarify what is meant by ‘express’ consent. The notion must be interpreted in light of the term ‘implied consent’ in Article 5(1)(f). An express consent necessarily consists of a statement of some kind, whether oral or in writing: consent would otherwise be ‘implied’, and would accordingly fall under the latter provision. The statement must be worded in such a way as to signify that the defendant unreservedly submitted to the jurisdiction of the court of origin. As stipulated in Article 5(2)(a), where recognition or enforcement is sought against a consumer in matters relating to a consumer contract, Article 5(1)(e) ‘applies only if the consent was addressed to the court, orally or in writing’. The same is true of judgments that ruled against an employee in matters relating to the employee’s contract of employment. The provision reflects a concern for the protection of consumers and employees. It appears to be based on the assumption that, where a statement is addressed to the court, rather than the other party, there is a lower risk that the consumer or the employee might submit to the jurisdiction of the court without the intention to do so, or without contemplating the consequences that their acceptance entails. Article 5(2)(a) specifically requires that the defendant’s consent be ‘addressed to the court’, whereas Article 5(1)(e) is silent on this point. This suggests that the latter requirement is not one

106 On the inclusion of such proceedings in the scope of the Convention, see generally, Wolfgang Hau, ch 2, section II.C in this volume. 107 Bonomi (n 41) 15. 108 Weller (n 5) 288.

64  Pietro Franzina of general application. Thus, outside the cases covered by Article 5(2)(a), nothing excludes that the consent of the defendant may consist of a statement addressed to the other party, provided that this occurred ‘in the course of the proceedings in which the judgment was given’, for example, in the framework of negotiations between the parties following the initiation of proceedings before the court of origin.

iii.  Failure by the Defendant to Contest the Jurisdiction of the Seised Court Under the rules on direct jurisdiction in force in several States, or laid down in international conventions and regional instruments (eg, Article 26 Brussels Ibis Regulation), a failure by the defendant to object to the jurisdiction of the seised court entails that the latter has jurisdiction over the matter, regardless of whether it would otherwise be entitled to rule on the claim. The defendant will then be considered to have implicitly submitted to the jurisdiction of the court in question. A failure on the part of the defendant to object to the jurisdiction of the seised court may be intentional. This may occur, for example, where the defendant wishes to avoid the extra costs that a challenge would entail, and deliberately waives any opportunity to raise any issue concerning the jurisdiction of the court. Cases exist, however, where the defendant fails to object to the jurisdiction of the seised court merely because he is not aware of the possibility of contesting the authority of the court to entertain the claim, or because he knows that a challenge would have no prospect of success. It may be, for instance, that the seised court is permitted, as a rule, to refrain from exercising its jurisdiction on grounds of convenience, but the case law in the forum State indicates that, in the circumstances of the case, the court would not avail itself of its discretion to stay the proceedings, let alone decline its jurisdiction. The first scenario would come close, in fact, to express consent, and is largely unproblematic. The remaining scenarios, instead, presuppose some safeguards to ensure that the jurisdiction of the seised court ultimately complies with the requirements of fairness and reasonableness. There are different ways in which the concerns surrounding implied consent are addressed under the rules on direct jurisdiction. The legislation and practice of States is not uniform in this respect.109 Article 5(1)(f) of the Judgments Convention provides that a judgment is eligible for recognition and enforcement under the Convention if ‘the defendant argued on the merits before the court of origin without contesting jurisdiction within the timeframe provided in the law of the State of origin’.110 The provision goes on to state that the latter requirement is not met if ‘it is evident that an objection to jurisdiction or to the exercise of jurisdiction would not have succeeded’ under the law of the State of origin. By arguing on the merits, the defendant signifies that he agrees on the fact that the substance of the matter ought to be decided by the seised court. In assessing whether the defendant actually argued on the merits before the court of origin, the requested court must look at the way in which the proceedings unfolded before that court. While the requested court may need to consider the procedural rules in force in the State of origin, they are not bound by those rules.

109 G Saumier, ‘Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention’ (2020) 67 Netherlands International Law Review 49, 52 ff. 110 As noted by Saumier (n 109) 63, the Convention ‘would have strayed from its scope and mandate, and undoubtedly not achieved consensus, if it had sought to impose a uniform and autonomous method for objecting to jurisdiction in the court of origin’. Hence the reference to the law of the State of origin – a rather unusual occurrence in the Convention.

The Jurisdictional Filters  65 The issue is, basically, whether – apart from any procedural technicalities, and regardless of any fictions and presumptions as may be provided for under the law of the State of origin – the defendant took any steps in the proceedings that involved contestation of the merits of the dispute. Since Article 5(1)(f) requires that the defendant did not contest the jurisdiction of the court of origin, the jurisdictional filter is not met where the defendant, though arguing on the merits, makes clear that he does not intend to submit to the jurisdiction of the seised court.111 In some countries the rules of civil procedure are such that a defendant cannot avoid taking a stance on the substance of the claim as the same time as he challenges the jurisdiction of the court. If he does so, and makes clear that by arguing on the merits he does not mean to waive his challenge on jurisdiction, the resulting judgment – if a judgment is eventually rendered – will not circulate in accordance with Article 5(1)(f). To prevent the future judgment from circulating under Article 5(1)(f) of the Convention, the defendant must contest the jurisdiction of the seised court ‘within the timeframe provided in the law of the State of origin’. For reasons of procedural efficiency, and in order to discourage delaying tactics, domestic rules often provide that the defendant is precluded from objecting to the jurisdiction of the court if he does not do so within a short delay. Article 5(1)(f) builds on the assumption that the defendant was given an opportunity to challenge the jurisdiction of the court of origin but failed to do so in a manner that involves consent or inexcusable negligence. There may be cases where the latter assumption would be misplaced. Specifically, this occurs where any attempt to contest the jurisdiction of the court of origin on the part of the defendant would not have succeeded. In these circumstances, a failure to object to the court’s jurisdiction could not be reasonably treated as an expression of consent or as proof of negligence. In light of this, the final proviso in Article 5(1)(f) makes the filter inoperative whenever the defendant shows that it was ‘evident’ that the court of origin would have exercised its jurisdiction regardless of any move on his part to have the case stayed or dismissed.112

iv.  Non-Exclusive Choice of Court Agreement between the Parties Consent to jurisdiction may take the form of a choice of court agreement. Article 5(1)(m) of the HCCH 2019 Judgments Convention stipulates that a judgment is eligible for recognition and enforcement if it was given by a court designated in an agreement ‘other than an exclusive choice of court agreement’, provided the agreement was concluded or is documented ‘in writing or by any other means of communication which renders information accessible so as to be usable for subsequent reference’. The latter expression refers to electronic means of data transmission or storage, including email.113 Recognition cannot be denied on the ground that the agreement fails to comply with such additional formal requirements as may be prescribed domestically. 111 A similar concern is expressed in s 5(2) of the Commonwealth Model Law, where it is stated that a person should not be regarded as having submitted to the jurisdiction of a court if such person appeared (conditionally or otherwise) in the proceedings for all or any one or more of the following purposes: (a) to contest the jurisdiction of the court; (b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in should be submitted to arbitration or to the determination of the courts of another country; (c) to protect, or obtain the release of, property seized or threatened with seizure in the proceedings. 112 This part of Art 5(1)(f) departs from known models in international instruments dealing with submission: Saumier (n 109) 63. 113 cf Garcimartín and Saumier (n 16) para 164. For additional analysis of the formal requirements of choice of court agreements, see Paul Beaumont, ch 6, section II.D, in this volume.

66  Pietro Franzina Choice of court agreements often consist of a clause included in a contract. The purpose of such a clause is to identify the court, or courts, that are entitled to rule on the disputes that may relate to the contract concerned. Despite its incorporation into a contract, a choice of court clause is an agreement of its own, distinct from the contract to which it belongs. The function of the two agreements is different: the former is concerned with litigation and its management, whereas the latter is meant to shape the substance of the transaction between the parties. The distinction between the two agreements is the logical premise of the so-called doctrine of severability. The doctrine postulates that a choice of court agreement that forms part of a contract should be treated as an agreement independent of the other terms of the contract, and that the validity of the former cannot be contested on the sole ground that the contract is invalid. The Judgments Convention, while not including an express reference to the latter doctrine, appears to build on the understanding that choice of court agreements perform a distinctive function (one relating to jurisdiction), no matter whether they are materially embodied in a contract, and should accordingly be dealt with as separate agreements.114 The Convention is silent as regards the substantive validity of choice of court agreements. It is unclear whether, and subject to which conditions, this means that the requested court is under an obligation to recognise and enforce a judgment that would otherwise pass the Article 5(1)(m) test where it appears that the jurisdiction of the court of origin rests on an agreement that is tainted by fraud, mistake, or duress.115 Recognition, it is contended, may in any case be denied in accordance with Article 7(1)(b) and/or (c), ie, the grounds for non-recognition that relate to public policy and fraud, provided, of course, that the conditions for resorting to the latter provisions are met in the circumstances. Pursuant to Article 5(2), Article 5(1)(m) is of no avail when it comes to judgments that ruled on a consumer matter or an employment matter, insofar as recognition and enforcement are sought against the consumer or the employee, respectively. On a more general note, as mentioned above, Article 5(1)(m) is inapplicable where the jurisdiction of the court of origin was based on an ‘exclusive’ choice of court agreement, ie, ‘an agreement concluded by two or more parties that designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one State or one or more specific courts of one State to the exclusion of the jurisdiction of any other courts’. Article 5(1)(m) is thus solely concerned with choice of court agreements that confer jurisdiction on the court of one State (or a specific court in one State) without precluding the operation of such rules on direct jurisdiction as may apply in the circumstances. In practice, where a dispute arises in connection with a matter for which a non-exclusive choice of court agreement was concluded, the claimant is given two options: he may seise the court specified in the agreement itself, or he may bring proceeding before a different court, in accordance with the applicable rules of direct jurisdiction. Non-exclusive agreements may come in different forms. ‘Asymmetrical’, or ‘hybrid’, choice of court agreements, ie, agreements that are meant to be exclusive for one party but nonexclusive for the other, are understood to come within this category.116 ‘Multiple exclusive’ choice of court agreements, ie, agreements whereby the parties confer j­urisdiction on the courts of more than one Contracting State but derogate from the jurisdiction of the courts of all other States,

114 See, however, Paul Beaumont, ch 6, section II.F, in this volume arguing that, in the absence of different indications in the Convention itself and in the Explanatory Report, the Contracting States are not bound under the Convention to apply the doctrine of severability for the purposes of determining the validity of a choice of court agreement. 115 See further, Paul Beaumont, ch 6, section II.E, in this volume. 116 Garcimartín and Saumier (n 16) para 217.

The Jurisdictional Filters  67 similarly fall within the scope of ‘non-exclusive’ agreements for the purposes of the HCCH 2019 Judgments Convention.117 The reason why exclusive choice of court agreements fall outside the scope of Article 5(1)(m) is that they specifically form the object of the HCCH 2005 Convention on Choice of Court Agreements.118 The HCCH 2019 Judgments Convention, as acknowledged in the Preamble, is complementary to the latter Convention and, accordingly, seeks to avoid overlap with it. The two instruments present themselves as a ‘package’,119 and should apply in such a way as to avoid the risk of both conflicts and unintended gaps.120 For this reason, the definition of ‘exclusive choice of court agreement’ in the Judgments Convention corresponds, in substance, with the definition provided in Article 3(a) of the Choice of Court Convention.121 The complementarity of the two texts involves, more generally, that the provisions that shape the scope of the Choice of Court Convention must be taken into account when determining the scope of Article 5(1)(m) of the Judgments Convention. This is true, in particular, of the indication provided in Article 3(b) of the Choice of Court of Convention, whereby an agreement which designates the courts of one Contracting State or one or more specific courts in one Contracting State must be deemed to be exclusive unless the parties expressly provided otherwise. The relationship between the Judgments Convention and the Choice of Court Convention is likely to prove complex in some cases, despite the efforts by the drafters to ensure their smooth interoperation. No particular difficulties arise where both the State of origin and the requested State are bound by the two instruments, and the agreement falls within the material and the temporal scope of both. If the agreement is exclusive, any judgments rendered by the chosen court will circulate under the Choice of Court Convention. If it is not, the resulting judgments will circulate via the Judgments Convention, based on Article 5(1)(m) or on any other filter as may be available in the circumstances, without prejudice for the domestic rules on recognition. Any remaining conflict between the obligations undertaken by the States in question pursuant to the two texts will then be settled in accordance with Article 23 of the Judgments Convention, which deals with the relationship between the latter Convention and other international instruments.

117 D Goddard and P Beaumont, ‘Recognition and Enforcement of Judgments in Civil or Commercial Matters’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 412. 118 See Art 1(1) of the Choice of Court Convention. Art 22 of the same Convention provides that a Contracting State may declare that its courts will recognise and enforce judgments given by courts of other Contracting States designated under a non-exclusive choice of court agreement. Judgments given in a Contracting State that has made a declaration to that effect will then qualify for recognition and enforcement in another Contracting State that has made such a declaration if the court of origin was designated in the agreement and there exists neither a judgment given by any other court before which proceedings could be brought in accordance with the non-exclusive choice of court agreement, nor a proceeding pending between the same parties in any other such court on the same cause of action, provided that the court of origin was the court first seised. None of the States that have so far joined the Choice of Court Convention have made a ­declaration pursuant to Art 22. 119 Nielsen (n 22) 221. 120 Some gaps, however, do arise. One is about tenancies. A judgment that ruled on a tenancy other than a residential tenancy enjoys recognition under Art 5(1)(m) of the Judgments Convention if it was given by a court designated in an agreement between the parties, provided that the agreement – as observed above – is not an exclusive choice of court agreement. If the agreement is exclusive, however, one cannot turn to the Choice of Court Convention, since ‘tenancies of immovable property’ are excluded altogether from the scope of the latter text pursuant to Art 2(2)(l). 121 Pursuant to Art 3(a) of the Choice of Court Convention, the term ‘exclusive choice of court agreement’ refers to ‘an agreement concluded by two or more parties that … designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one Contracting State or one or more specific courts of one Contracting State to the exclusion of the jurisdiction of any other courts’.

68  Pietro Franzina If the State of origin and the requested State are parties to the Judgments Convention, but not the Choice of Court Convention, judgments given by a court designated under an exclusive choice of court agreement will circulate between the two States under the former instrument, provided that the applicable jurisdictional filters in Article 5(1) so provide. Of course, Article 5(1)(m) would not be applicable, but there might be a chance that the judgment fulfils another requirement among those listed in Article 5(1). If this were not the case, recognition may still occur in conformity with the domestic rules of the State requested, as contemplated in Article 15.

v.  Consent in Respect of a Counterclaim Article 5(1)(l) of the Judgments Convention deals with judgments that ruled on a counterclaim, ie, a claim made by the defendant against the claimant in the framework of proceedings brought by the latter in the State of origin. Procedural efficiency and decisional harmony suggest that, subject to appropriate safeguards, a court having jurisdiction to rule on a claim should in principle be permitted to also rule on a counterclaim. In fact, if the claim and the counterclaim were to be decided by the courts of different States, a risk of inconsistent findings would arise, which might result, in turn, in irreconcilable judgments. The safeguards offered under the rules on direct jurisdiction generally revolve around consent: the court seised of the main claim may not extend its jurisdiction to the counterclaim unless the original claimant consented to such extension, impliedly as the case may be. Article 5(1)(l) follows a similar approach. A distinction is made depending on whether the court of origin, in deciding the counterclaim, ruled in favour of the counterclaimant or rather in favour of the original claimant, ie, the defendant in the counterclaim. In the former scenario, the judgment is eligible for recognition and enforcement if the counterclaim ‘arose out of the same transaction or occurrence as the claim’.122 By initiating proceedings in the court of origin, the claimant obviously consented to the jurisdiction of that court. Accordingly, it is fair for this court to also rule on a counterclaim, insofar as the latter is based on the same transaction or the same facts as the original claimant himself relied upon for his claim. This may occur, for example, where, in the proceedings brought by X against Y for breach of contract, a counterclaim is made by Y against X for non-performance of the obligations undertaken by X either under the same contract or under a collateral contract in the wider transaction between the parties. The second scenario arises where the counterclaimant lost his case in the court of origin, and the issue arises of the recognition and enforcement of the judgment that ruled against him. By bringing the counterclaim, the counterclaimant has accepted the jurisdiction of the court of origin. Normally, nothing in these circumstances should prevent the original claimant from relying on the judgment against the counterclaimant in another Contracting State under the Convention. Still, the Convention introduces a proviso whereby Article 5(1)(m), in this case, is not applicable if ‘the law of the State of origin required the counterclaim to be filed in order to avoid preclusion’, ie, if the counterclaim was not lodged voluntarily. Actually, if the filing of the counterclaim was compulsory under the law of the State of origin, this would defeat the prerequisite that the counterclaimant consented to the jurisdiction of the court that ruled on such counterclaim.

122 As noted by Yekini (n 11) 201, the language employed suggests that the main claim and counterclaim need not be contractual. Generally, what matters for the purposes of this provision, is whether the claim and the counterclaim ‘are sufficiently related that justice and expediency require that they should be tried together’.

The Jurisdictional Filters  69

V.  Concluding Remarks Articles 5 and 6 are among the key provisions of the HCCH 2019 Judgments Convention. Some of the jurisdictional bases listed therein stand as witnesses to the difficulties that surrounded the negotiation of the Convention. In fact, the two provisions represent the outcome of an unprecedented attempt to bridge the gap between different approaches to adjudicatory jurisdiction across the world. In this context, compromise was simply inevitable. Admittedly, some of the solutions adopted by the Convention lack the desired degree of c­ larity and detail, and are likely to result in divergent interpretations, notably if State courts (and the European Court of Justice, as regards the EU) are driven by a ‘homeward trend’.123 Article 5(1)(g), on judgments that ruled on matters relating to contractual obligations, is among the p ­ rovisions that are most likely to prove problematic in this respect.124 It would be unfair, however, to assess this part of the Convention using the rules on direct jurisdiction as a benchmark. The Judgments Convention does not deal with direct jurisdiction, and the filters provided therein could hardly be converted, as such (ie, mechanically), into uniform rules of direct jurisdiction of universal application, if indeed such rules will see the light of day, be it in the framework of the ongoing Jurisdiction Project of the Conference or in another context.125 Rather, as stated in the Preamble, the task of the Judgments Convention is to facilitate the cross-border movement of judgments worldwide. The pursuit of this goal requires a common understanding, shared by a number of States of different legal traditions, of what constitutes a fair basis of jurisdiction. Despite the very significant efforts deployed, this is not an objective that can realistically be achieved at once. The HCCH 2019 Judgments Convention marked a huge step forward in this direction, arguably a crucially important one. Further steps will need to be taken in due course. The Convention, especially if it enters into force internationally for a significant number of States in not too long a time, may serve as a springboard for further cooperation, both regionally and globally.126 For the time being, however, the focus should of course be on the proper implementation and uniform interpretation of the Convention. It is the task of practitioners and academics to ­contribute to this challenging enterprise and ensure that the work done within the Hague Conference on Private International Law bears fruit. 123 Brand (n 13) 865 ff. 124 See, in particular, the critical remarks by Yekini (n 11) 210 ff. 125 The issue has been raised within the Experts’ Group charged with the Jurisdiction Project of the possible relevance of the jurisdictional filters in the HCCH 2019 Judgments Convention to the design of a future set of rules of direct jurisdiction in civil and commercial matters: see HCCH, Prel Doc No 3 of March 2021 – Annex I, para 14 ff, available at: hcch. net. Different views have been expressed in this regard. It has been suggested that the indirect jurisdictional bases in Arts 5 and 6 should serve as a starting point for any future drafting of such rules. Some experts expressed the opinion that certain filters, including those in Art 5(1)(a), (b), (d), (e), (g), (h), (i), (k) and (m), could be transformed into grounds for ‘required jurisdiction’. Others contended that the approach should vary depending on the filters considered. It is too early to say whether, and in which manner, the filters provided for in the Judgments Convention will affect the design of any future rule of direct jurisdiction. Incidentally, the Working Group that is currently in charge of the Jurisdiction Project has focused, so far, on parallel proceedings, rather than direct jurisdiction: see HCCH, Prel Doc No 7 of February 2022, available at: /hcch.net. 126 Admittedly, the layout of the Convention may limit the prospect of such an evolution. According to Brand (n 13) 865, the exhaustive nature of Art 5(1) – ie, the attempt by the drafters (without prejudice to Art 15) to cover every possible acceptable direct jurisdiction basis as a rule of indirect jurisdiction – ‘runs both the risk of not going far enough and the risk of going too far’. In fact, the effort is exhaustive ‘only with respect to situations that have been confronted up to this point in time’, whereas, given the dynamism of social and economic interaction, and technological progress, ‘it is not difficult to imagine that other bases of jurisdiction may become widely adopted but remain outside the Convention’. The approach in Art 5 ‘thus risks locking in what may become outdated tests that can be changed only by treaty amendment – a process which is extremely difficult, particularly if (as is otherwise desirable) there becomes a large number of Contracting States’.

70

4 Grounds for Refusal MARCOS DOTTA SALGUEIRO*

En n’approuvant que ce qu’on considère comme le système parfait, on s’expose à n’obtenir rien du tout. Tobias Asser1

I. Introduction The HCCH 2019 Judgments Convention is a milestone in private international law. Beyond regional efforts, for the very first time in history, representatives from all over the world agreed on a universal text under which judgments given by their courts may be recognised and enforced abroad. The Convention is an ambitious but realistic instrument, that arises from an increasingly globalised world. Together with humanity, legal systems are more connected and interdependent than ever, and people and enterprises need and ask for fair, clear and ­practical solutions to their legal problems and situations relating to their lives and business across borders. Within a framework where human rights and UN Sustainable Development Goals (SDGs)2 are an important contemporary normative part of international law, the HCCH 2019 Judgments Convention builds on the results of an open and sincere interaction among States and their legal cultures, principles and traditions. Dialogue and mutual knowledge are key to deepen trust and elaborate the appropriate minimum common understanding under which the traditional concept of sovereignty leaves room for the recognition and enforcement of foreign judgments.3

* Marcos Dotta Salgueiro, Adj Professor of Private International Law, Law Faculty, University of the Republic, Montevideo, Uruguay, Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay, [email protected]. The author was Vice Chair of the Twenty-Second Diplomatic Session of the Hague Conference on Private International Law, which drew up the text of the HCCH 2019 Judgments Convention. All opinions in this chapter are expressed in a personal capacity. 1 TMC Asser, ‘De l’effet ou de l’exécution des judgments rendus à l’étranger en matière civile et commercial’ [1869] Revue de Droit International et de Législation Comparée 492. In translation (by the author of the present text): ‘If we only passed what we understand is the perfect system, at the end we may have nothing at all’. 2 In relation to this Convention, see in particular SDG 16: Promote just, peaceful and inclusive societies. 3 On the lessons learnt from the negotiation process, see Ning Zhao, ch 15 in this volume.

72  Marcos Dotta Salgueiro Among the virtues of the system established by the Convention is the tolerant and respectful spirit towards foreign judgments – and, through them, towards foreign authorities and legal systems – which, under the conditions established in the text, would be recognised and enforced in the same manner and with the same effects as if they were given by a national court of the requested State. Building upon the terms ‘recognition’ and ‘enforcement’ as discussed in chapter two,4 this chapter focuses on the grounds for refusal that have been included in the Convention, as exceptional situations under which a given foreign judgment, even though falling within the scope of application of the Convention, may not be recognised or enforced, or, in other words, will not deploy its res judicata effects in the requested State. These grounds for refusal are the result of a rational balance among the different interests, concerns and requests of States that were carefully negotiated, but also the consecration of shared material principles, something that should be especially valued. Consequently, the interpretation that must be given to these grounds is strict and narrow, as otherwise what is an international obligation under the Convention, could be turned into a discretionary power at the national level. In this sense, we will begin by defining the overarching principles that inspire the system of the Convention in relation to the recognition and enforcement of a foreign judgment. In a second step, we will analyse the grounds for refusal themselves, grouping them according to a proposed criterion. Finally, we will discuss the possibility of denying recognition and/or enforcement in a given situation, before drawing some conclusions.

II.  Recognition and Enforcement of Foreign Judgments: The Overarching Principles The most genuine spirit of the HCCH 2019 Judgments Convention is materialised in the general provisions of Article 4: (1) A judgment given by a court of a Contracting State (State of origin) shall be recognised and enforced in another Contracting State (requested State) in accordance with the provisions of this Chapter. Recognition or enforcement may be refused only on the grounds specified in this Convention.

As a consequence of this provision, once the foreign judgment is considered eligible for recognition and enforcement as it falls into the scope of application of the Convention, the only reason why recognition and enforcement may be refused is according to the narrow grounds that the Convention itself specifies. This principle has as a logical complement the provision stated in the second paragraph: (2) There 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.

As the whole structure of the Convention is based on mutual trust among the legal systems and the courts of the Parties, it is logical that the court of the requested State is not entitled to

4 See Wolfgang Hau, ch 2 in this volume. On the scope of these terms and its link to res judicata effects in the Convention, see also, F Garcimartín, ‘The Judgments Convention: Some Open Questions’ (2020) 67 Netherlands International Law Review 19, 25–27.

Grounds for Refusal  73 review the merits of the foreign judgments. This provision covers both the analysis of the facts ­considered, and the law applied. As has been said in the Explanatory Report: This rule is a necessary corollary of the principle of mutual recognition of judgments: there would be little purpose to the Convention if the court of the requested State could review the underlying factual or legal basis upon which the court of origin reached its decision … Accordingly, as a general matter, the court addressed is not to examine the substantive correctness of that judgment: it may not refuse ­recognition or enforcement if it considers that a point of fact or law has been wrongly decided. Furthermore, the court addressed cannot refuse recognition or enforcement on the ground that there is a discrepancy between the law applied by the court of origin and the law which would have been applied by the court addressed.5

The only situation in which merits can be considered is in order to apply the Convention itself. As can be seen, the second part of the paragraph intends to strictly constrain such consideration and to avoid any attempt at revision. In this sense, in addition to the general rule on uniform ­interpretation contained in Article 20 of the Judgments Convention, the interpretation of this provision – as the interpretation of the whole text – must be done in good faith, according to Article 31(1) of the Vienna Convention on the Law of Treaties.6 Furthermore, the narrow nature of this provision would be even better understood in Latin languages, following the French version of the Convention: (2) Le jugement ne peut pas faire l’objet d’une révision au fond dans l’État requis. Il ne peut y avoir d’appréciation qu’au regard de ce qui est nécessaire pour l’application de la présente Convention.7

Finally, the third paragraph of Article 4 states that: (3) A judgment shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin.

This is in line with the spirit of other international regimes, such as Regulation (EU) No 1215/2012 of the European Parliament and of the Council (Article 39) and the 1979 Inter-American Convention on Extraterritoriality of Foreign Judgments and Arbitral Awards (Article 2(g)). In this sense, the HCCH 2019 Judgments Convention accords only to the State of origin of the judgment (lex causae) the competence to determine the authority and effectiveness that a given judgment may have: they will never go beyond those provided by the State of origin, and are linked by definition to that law.8

III.  The Grounds for Refusal of Recognition and Enforcement Established by the Convention A.  General Comments and Classification The dispositions that are the object of this chapter can be found in Articles 7–10 of the HCCH 2019 Judgments Convention. Strictly analysed, the core of the refusals is listed in Article 7, while the 5 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 119. 6 Art 31 of Vienna Convention on the Law of Treaties (1969): ‘General rule of interpretation. 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. 7 For an even stronger wording of the same principle, see Art 52 Brussels Ibis Regulation. 8 On this issue, see in more detail, Wolfgang Hau, ch 2, in this volume.

74  Marcos Dotta Salgueiro provisions of Articles 8–10 are relevant to our subject matter as a consequence of their main object (preliminary questions, severability and damages respectively), not being their main purpose to create or elaborate on these grounds, but containing them inherently. Regarding Article 7, emphasis must be made on the verb ‘may’ at the chapeau of both paragraphs: according to them, ‘Recognition and enforcement may be refused’ or ‘may be postponed or refused’ respectively, when the grounds then listed are met. But this is not an obligation towards the States: they are just the possibilities to refuse recognition and enforcement, but at the same time, the only possibilities to do so according to the Convention. They are exhaustive, but not mandatory. In other words, the discretion given to Contracting States is limited to use or not use these grounds for refusal, not to add others. As has been developed in the Explanatory Report: Article 7 establishes that States ‘may’ refuse recognition or enforcement if one or more grounds are met. This provision is addressed to States. States can (i) adopt domestic legislation that does not provide for refusal in some of these circumstances or provide for refusal in all these circumstances, (ii) require recognition and enforcement in some of these circumstances, (iii) specify additional criteria that are relevant to the exercise of the discretion, or (iv) leave everything to the discretion of the court.9

In this sense, those countries that already have national or domestic legislation relating to the recognition and enforcement of foreign judgments should analyse the coordination among its dispositions and those of the Convention. Meanwhile, facing a situation of plurality of treaties potentially applied to the same situation, the relationship of the provisions of the Convention vis-a-vis those contained in other international instruments, should be considered in terms of Article 23 of the Convention.10 As established by Article 13, national laws will govern in principle – unless otherwise provided by the Convention – the procedure ‘for recognition, declaration of enforceability or registration for enforcement’. This includes from our perspective the question of the burden of proof for facts that would establish a ground for refusal. When the issue raised is a matter of law, or the interpretation of the facts need reasoning from a law perspective, the lex fori approach of the requested State will prevail in any case, with due consideration to the ‘international character’ of the Convention (Article 20). From our point of view, the grounds for refusal included in the Convention can be classified and analysed in two groups: those on a procedural basis, on the one hand, and those based on substantive elements, on the other. The grounds for refusal based on procedural elements include: (i) those linked to the notification of the document which instituted the proceedings, situations covered by Article 7(1)(a); (ii) the case when the proceedings in the court of origin took place without taking into account an agreement between the parties that had chosen a court of a State other than those of the State that heard the case, as regulated by Article 7(1)(d); (iii) the situation when the judgment is i­nconsistent with another judgment, which include two variants: an inconsistency with a judgment given by a court of the requested State, in a dispute between the same parties (Article 7(1)(e)) and/or an inconsistency with an earlier judgment given by a court of another State between the same parties on the same subject matter (Article 7(1)(f)); (iv) lis pendens, as regulated in Article 7(2); and (v) severability, according to Article 9. Meanwhile, the grounds for refusal based on substantive elements that can be identified are: (i) when the judgment has been obtained by fraud (Article 7(1)(b)); (ii) when recognition and

9 Garcimartín

10 On

and Saumier (n 5) para 246. this issue, see also, Verónica Ruiz Abou-Nigm, ch 11 in this volume.

Grounds for Refusal  75 enforcement of the foreign judgment would be manifestly incompatible with the public policy of the requested State (Article 7(1)(c)); (iii) the situations of preliminary questions as regulated by Article 8; and (iv) the situations relating to damages, to the extent covered by Article 10.

B. Analysis i.  Grounds for Refusal based on Procedural Elements a.  Notification (Article 7(1)(a)) Under Article 7(1)(a) of the Judgments Convention, recognition and enforcement of a foreign judgment may be refused for two reasons relating to the document or documents which instituted the proceedings: the first is when it ‘was not notified to the defendant in sufficient time and in such a way as to enable them to arrange for their defence’, while, in the second case, refusal can be granted if those documents were ‘notified to the defendant in the requested State in a manner that is incompatible with the fundamental principles of the requested State concerning service of documents’. This first situation is inspired by the substantive ‘right to be heard’ or the ‘day in court’ principle – understood as part of the human right of access to justice,11 – and aims to ensure a minimum guarantee to the defendant regarding the very first steps of the proceedings as a result of which the judgment whose recognition and/or enforcement is now requested, was passed. As indicated in the Explanatory Report, sharing the Hartley/Dogauchi Report: ‘The test for appropriate notification is factual rather than technical’,12 and thus, when dealing with this ground, attention must be given to the case-by-case situation instead of to the means of notification itself, that is not considered. That is why the same provision understands the appearance before the court of origin as relevant, even regardless of the notification if, in substantive terms, a due defence could be arranged. From our perspective, for those Contracting Parties to the HCCH 1965 Convention on the Service abroad of Judicial and Extrajudicial documents in civil or commercial matters, if the document which instituted the proceedings was serviced according to its provisions, the ground for refusal established in this Article 7(1)(a) may not apply in principle regarding the manner of the notification (Article 7(1)(a)(ii)), but may still apply, on a case-by-case analysis, with relation to the sufficient time to enable the defendant to arrange its defence.13 The second situation relating to the document that instituted the proceedings has an emphasis on the protection of the requested State, and applies only when the notification was made in the requested State, but that service was performed in a manner incompatible with its fundamental principles concerning that service. As has been stated by Peter Arnt Nielsen: The Convention neither lists nor defines these principles, which, on the one hand seems to suggest that it is up to national law in each Contracting State to define the concept. On the other hand, it follows Article 20 of the Convention emphasizing the need for uniform interpretation.14 11 cf in this regard, among others: Art 10 of the Universal Declaration of Human Rights (1948); Art 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, 1950); Art 14(1) of the International Covenant on Civil and Political Rights (1966); Art 8(1) of the American Convention on Human Rights (1969); and Art 7(1) of the African Charter on Human and People’s Rights (1981). 12 Garcimartín and Saumier (n 5) para 250. 13 Nevertheless, due consideration should be given to Art 16 HCCH 1965 Service Convention. 14 PA Nielsen, ‘The Hague 2019 Judgments Convention – from failure to success?’ (2020) 16 Journal of Private International Law 205, 230.

76  Marcos Dotta Salgueiro As States have different approaches regarding the need or not for an international agreement or a unilateral allowance in order to permit services of foreign documents instituting proceedings on their own territory – going from a no objection to the consideration of the service as a sovereign act that necessarily needs the intervention of their national authorities – the Judgments Convention leaves open the possibility of refusing recognition or enforcement to those who may consider that a given situation falls within the scope of this ground. Of course, the refusal of recognition or enforcement in a given country based on this ground does not prevent a hypothetical recognition or enforcement of the same judgment in another country, unless the situation described under sub-paragraph (a)(i) is understood as met. b.  Choice of Court Agreement (Article 7(1)(d)) This ground for refusal aims to protect and respect party autonomy in any case where it is recognised and allowed by the law of the requested State (eg, within the framework of the HCCH 2005 Choice of Court Convention,15 the Buenos Aires Protocol on international jurisdiction on contractual matters within MERCOSUR,16 or any national private international law rules that may apply in a given situation) and should be understood irrespective of the exclusive or non-exclusive election made. Also, it should be noted that this ground for refusal may be met irrespective of whether the defendant had raised or not the defence of incompetence in the State of origin, as this has not been established as a prerequisite.17 Nevertheless, we understand that good faith should be also considered when dealing with this ground in the requested State, and thus, in general, this ground may only be considered when the issue was raised before the court of origin, it heard about the contradiction, and decided to dismiss that defence and continue the proceeding until the final judgment. c.  Inconsistency with Judgment from the Requested State (Article 7(1)(e)) This ground for refusal allows the requested State to deny recognition or enforcement in the particular situation that the foreign judgment is ‘inconsistent’ with a national judgment, in a dispute between the same parties. The aim of the disposition is to provide flexibility to the requested State in order to be able to consider the whole factual and legal situation between two parties, establishing a certain preference for its national judgments, in order to ensure coherence and legal certainty at its own level. As can be seen, the provision does not request that the national judgment has been delivered first, nor that both judgments refer to the same subject matter or are based on the same cause of action: it only requires the parties’ identity, and the fulfilment of the open term ‘inconsistency’ as a basic threshold. According to the Explanatory Report: ‘The two judgments will be “inconsistent” when it is not possible to act in accordance with one without violating the other in whole or in part’.18 In any case, from our perspective and as any ground for refusal, a strict and good-faith interpretation should be given to this wording. In our understanding, this ­sub-paragraph may be seen as a soft res judicata, as only a portion of that concept is entailed,

15 On the relation to the HCCH 2005 Choice of Court Convention, see generally, Paul Beaumont, ch 6 in this volume. 16 MERCOSUR/CMC/DEC. No 01/94 Protocolo de Buenos Aires sobre Jurisdicción Internacional en Materia Contractual. 17 For a different perspective on this issue, see, Garcimartín and Saumier (n 5) para 268, fn 195. 18 ibid, para 271.

Grounds for Refusal  77 and thus, the analysis of the hypothetical use of this ground for refusal in a given situation should be made considering the hypothesis as a gradation of a full res judicata, as it is clear that, if all the requirements of res judicata are met with respect to a judgment given by a court of the requested State, the inconsistency between the foreign and the national judgment will be complete.19 In this sense, with regard to a national judgment, the provision is a floor, whose ceiling is the res judicata. Additionally, it must be highlighted that it is not relevant that the judgment given by the court of the requested State does not fall within the scope of application of the Convention, as that is only a criterion to analyse if a foreign judgment is eligible or not eligible for recognition and enforcement. Thus, the inconsistency could emerge in relation to a national judgment of a very different nature from that of the foreign judgment whose recognition and enforcement is requested. d.  Inconsistency with an Earlier Judgment (Article 7(1)(f)) Unlike the previous case, in the situation covered by Article 7(1)(f) the inconsistency is between two foreign judgments that fulfil the conditions required for its recognition in the requested State. As there are no national judgments involved, the provision is stricter, and allows a defence closer to res judicata (or ‘res judicata strictu sensu’), as it recognises the effect of the earlier ­judgment, and requests the identity both of parties and the subject matter. Seen from the requested State, it is not relevant that the first judgment given abroad had sought or not sought recognition or enforcement in that requested State before the presentation of this defence in relation to the second judgment provided the fulfilment of the conditions to that end. Additionally, it must be highlighted that preference is given to the first judgment delivered, irrespective of which court was first seised. In this sense, the criterion differs from the one adopted in the lis pendens situation of Article 7(2), as will be seen below. Through this disposition, the HCCH 2019 Judgments Convention allows the requested State to deny recognition or enforcement of a foreign judgment that may break a solution already given by a foreign court, under a situation that the Convention itself considers recognisable and enforceable, reinforcing, as a result, the certainly and predictability that inspires the whole text. As the provision does not apply if one of the foreign judgments does not fulfil the conditions necessary for its recognition in the requested State, it does not include the situation of two inconsistent foreign judgments due to, for example, incompatibility of one of them with the public policy of the requested State, as in this case, that judgment would not meet the conditions for its recognition. e.  Lis pendens (Article 7(2)) Article 7(2) deals with the lis pendens situation in a court of the requested State, in the exclusive case of a foreign judgment already delivered between the same parties on the same subject matter. 19 This situation of a ‘complete’ res judicata is contemplated in the Protocol of Cooperation and Jurisdictional Assistance in Civil, Commercial, Labor and Administrative Matters of MERCOSUR (Mercosur/CMC/DEC No 05/92, ‘Las Leñas’ Protocol), on Art 22: ‘In the case of a judgment or arbitration award between the same parties, based on the same facts and that has the same object as that of another jurisdictional or arbitral process in the requested State, its recognition and enforceability will depend on the fact that the decision is not incompatible with another previous or simultaneous pronouncement made in such process in the requested State’. In addition, the threshold of not being ‘incompatible’ in the Protocol is higher than the ‘inconsistency’ as required by the Convention.

78  Marcos Dotta Salgueiro Unlike the situations under paragraph 1, that allowed only the ‘refusal’, by its nature this provision allows both refusal or postponement, ie, a decision on the non-recognition or enforcement of the foreign judgment given before the one that will be delivered when the proceeding in the requested State finishes, or the delay in time of the decision on the recognition or enforcement until a final judgment in the requested State is delivered. In the latter case, the following ground for refusal whose application should be analysed is the one on Article 7(1)(e). If the decision is refusal, the final provision or the paragraph establishes that in any case, there may be a subsequent application for recognition or enforcement of the judgment, or, in other words, that a refusal under Article 7(2) is not res judicata regarding the request of recognition or enforcement. As a result, in practical terms, the effects of a refusal or a postponement under this paragraph are quite similar. In this particular case, the Judgments Convention adopts the criterion of a ‘first in time’ rule,20 but only when that court first seised is the court of the requested State. But the Convention adds another requisite, which is substantive and not temporary nor procedural: the ground for refusal or postponement is available only if ‘there is a close connection between the dispute and the requested State’. According to the Explanatory Report: This condition is to prevent strategic or opportunistic behavior. For example, without the condition, a potential defendant in one State could move to another State and sue the other party there, seeking a so-called ‘negative declaration’ just to prevent the future recognition or enforcement of the foreign ­judgment and on the basis of an exorbitant jurisdictional ground.21

Sharing this point of view, we understand that also the spirit of the forum non conveniens doctrine is behind the disposition. Beyond this situation, there are no provisions on lis pendens, and thus if this issue arises in a given situation, it should be analysed through the general principles and dispositions of the Convention, as well as of private international law.22 It may be the situation, for example, in which the party against whom recognition and enforcement is sought, presents as a defence in the requested State that the courts of a third State are still hearing a case between the same parties on the same subject matter.23 In this case, that is not covered by the Convention explicitly, we understand that this defence should not be heard, and that only when and if recognition and enforcement of the ‘second’ judgment, once given, is sought in the requested State, will the requested State have the opportunity to consider if the situations falls or not under Article 7(1)(f). f.  Severability (Article 9) Article 9 (that replicates Article 15 HCCH 2005 Choice of Court Convention) deals with the ­situation of recognition or enforcement of a severable part of a judgment. As it allows the

20 On the approaches to lis pendens, see N Zhao, ‘Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention’ (2020) 30 Swiss Review of International and European Law 345, 367: ‘There are generally two approaches dealing with lis pendens ­situations around the world: either applying a “first in time” rule, which is commonly applied in civil law jurisdictions, or applying a forum non conveniens analysis, which is commonly applied in common law jurisdictions’. 21 Garcimartín and Saumier (n 5) para 275. 22 In this regard, due consideration and follow-up to the results of the current HCCH Working Group on Jurisdiction is recommended in the near future. 23 On lis alibi pendens, see also, Wolfgang Hau, ch 2, section II.G, in this volume.

Grounds for Refusal  79 recognition or enforcement of a severable part of a judgment when the requirements established are met, the ground for refusal in this case should be addressed in negative terms, ie, when ­recognition or enforcement of a part of a judgment is requested, but that part is not severable from the whole judgment, and/or there are no parts of the judgment capable of being recognised or enforced under the Judgments Convention. The analysis of this situation should be made, of course, on a case-by-case basis. As indicated in the Explanatory Report: In order to be severable, the part of a judgment must be capable of standing alone. This would normally depend on whether enforcing only that part of the judgment would significantly change the obligations of the parties. If severability raises issues of law, they will have to be determined according to the law of the requested State.24

Even though the Convention does not indicate under which conditions severability is decided (eg, if the party asks directly for the recognition or enforcement of a part of the foreign judgment, or if this is decided ex officio by the court of the requested State when asked for a full recognition or enforcement), we understand that the text is flexible enough to cover any procedural ­situation, including the defence by the defendant that a given part is not severable from the judgment, something that would be, in practice, a ground for refusal. Also, if a foreign judgment is not recognised or enforced as a whole, the losing claimant – subject to national procedural law – may be allowed to ask for the recognition and enforcement of a severable part of the judgment, should the conditions of Article 9 be met.

ii.  Grounds for Refusal based on Substantive Elements a.  Judgment Obtained by Fraud (Article 7(1)(b)) Under Article 7(1)(b) of the HCCH 2019 Judgments Convention, recognition and enforcement of a foreign judgment may be refused if ‘the judgment was obtained by fraud’. Even though many ‘frauds’ may be developed in procedural acts, we understand that any kind of fraud is substantive, and that is why we decided to include this ground for refusal under this group. This situation is serious enough to allow the refusal of the recognition or enforcement of the foreign judgment, but due care must be given to the analysis of the case-by-case factual circumstances, in order to prevent going beyond restrictions of Article 4(2). As stated in the Explanatory Report: Sub-paragraph (b) provides that fraud in obtaining the judgment is a ground for refusing recognition or enforcement. Fraud refers to behaviour that deliberately seeks to deceive in order to secure an unfair or unlawful gain or to deprive another of a right. While some states subsume a defence based on fraud within the public policy defence, others treat fraud as a self-standing defence to recognition and enforcement.25

The recognition of this ground as a self-standing defence must be seen as an emphasis of the good faith that must prevail between the parties, and also, as the reaffirmation of the international community of a principle of access to justice and due process, in substantive terms and not only in formal ones. In this sense, the Convention clearly understands that the private international law rule cannot be ‘neutral’ when facing this situation.



24 Garcimartín 25 ibid,

and Saumier (n 5) para 290. para 255.

80  Marcos Dotta Salgueiro Even though it seems that the provision confers to the court of the requested State the authority to decide whether a ‘fraud’ was committed or not in the State of origin, it may be possible also that a judgment on an alleged ‘fraud’ had been given in the State of origin. In this case, the court of the requested State may have to carefully consider: (i) the content of the second judgment; (ii) the possibility of recognising that second judgment, and to what extent it could be a preliminary question in relation to the original fraud defence; (iii) if the judgment relating to the fraud falls within the scope of application of the Convention; and (iv) the provision of Article 4(2). b.  Public Policy (Article 7(1)(c)) According to Article 7(1)c), recognition or enforcement may be refused if recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State and situations involving infringements of security or sovereignty of that State.

This provision contains the most classical and necessary ground for refusal in private international law: the public policy defence. Even though there is consensus regarding the need of this clause as a ‘last resort’, the provision has to be narrow enough to avoid any abuse or discretion in its understanding. But in any case, the concept of ‘public policy’ has demonstrated being both inherent and necessary to any private international law instrument. This could be seen as a lesson from the first or ‘old’ HCCH Conventions of 1902, which did not contain an explicit ordre public reservation, a matter later addressed in the International Court of Justice’s famous Boll case.26 Private international law is a law of tolerance and respect, and even some ius cogens general principles may be understood as universal (in particular, those relating to human rights). However, there is still obvious room for policy differences among States, their legal orders and country-specificities,27 which are protected by this clause. Within this framework, Article 7(1)(c) has been worded with care and precision. First of all, this ground for refusal requires that the recognition or enforcement ‘would be manifestly incompatible with the public policy of the requested State’, ie, a simple incompatibility would not be enough: it should be a qualified, serious one. In this sense, as stated in the Explanatory Report: ‘Manifestly’ is a high threshold, intended to ensure that judgments of States are recognized and enforced by other States unless there is a compelling public policy reason not to do so in a particular case. The word ‘manifestly’ has been used in previous cases to discourage the overuse of the public policy exception and to limit it use to situations where recognition or enforcement would lead to an ‘intolerable result’.28

Second, the ‘public policy’ that is considered as a ground for refusal is narrower than a mere ‘public policy’, as can be understood in each State for its own legal order for those dispositions

26 cf Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden) [1958] ICJ Rep 161. 27 From a global perspective, secularism, recognition or not of euthanasia, surrogacy, abortion, same-sex marriage or the right to keep and bear arms, among others, may be considered still as country-specific contents of international public policy. 28 Garcimartín and Saumier (n 5) para 260.

Grounds for Refusal  81 that are beyond the free will of the parties or where a public (national) interest is embodied. In this sense: The exceptional character of the public policy defence means that it is not sufficient for the party opposing recognition or enforcement to point to a mandatory rule of the law of the requested State that the foreign judgment fails to uphold. Indeed, this mandatory rule may be considered imperative for ­domestic cases but not for international situations. The public policy defence of sub-paragraph (c) should be triggered only where such a mandatory rule reflects a fundamental value, the violation of which would be manifest if enforcement of the foreign judgment was permitted. In some jurisdictions, this is referred to as ‘international public policy’ as distinguished from ‘internal public policy’.29

This latter concept is also shared by Junhyok Jang: [T]he Convention explicitly embodies the idea that solely the very fundamental legal principles of the State requested, not all of its distinct legal principles, constitute its public policy. Public policy is an exception which may only be invoked very sparingly. The relevant principle should be so important to the requested State that it will find its infringement unbearable. The mandatory nature of its policy, by itself, does not suffice. In other words, the relevant policy should qualify as ‘international’ public policy.30

Indeed, as reflected in the Explanatory Report, there was a proposal by Uruguay during the negotiations of the Convention to include the term ‘international public policy’ in the text of this Article, which received some support, even though ‘some delegations noted that they were unfamiliar with the term ‘international public policy’ and expressed concerns in respect of its inclusion in the text of the Convention’.31,32 This key, theoretical notion, has been sustained and defended by Uruguay for decades. Indeed, perhaps the first attempt to this end recorded on an international instrument was made by Uruguay, at the time of signature of the Inter-American Convention on General Rules of Private International Law (approved in Montevideo in 1979) when a declaration was made relating to the scope of the general public order clause as included in its Article 5, that states: Uruguay wishes to state expressly and clearly that … its interpretation of the afore mentioned e­ xception refers to international public order as an individual juridical institution, not necessarily identifiable with the internal public order of each State. Therefore, in the opinion of Uruguay, the approved formula conveys an exceptional authorization to the various States Parties to declare in a nondiscretionary and well-founded manner that the precepts of foreign law are inapplicable whenever these concretely and in a serious and open manner offend the standards and principles essential to the international public order on which each individual State bases its legal individuality.

In this sense, by rooting the notion only on each State’s essential standards and principles, this ground for refusal is better understood in its nature and scope as comprising those standards and principles based on international public law sources that may be common to a certain group of States – or to the international community as a whole if applicable – and to those few fundamental, country-specific situations, based on national law, that are so inherent to a given State that cannot and should not be unobserved when recognising a foreign judgment. 29 Garcimartín and Saumier (n 5) para 263. 30 J Jang, ‘The Public Policy Exception Under the New 2019 HCCH Judgments Convention’ (2020) 67 Netherlands International Law Review 97, 100. 31 Garcimartín and Saumier (n 5) para 263, fn 189. 32 It is worth mentioning that the Code of Civil Procedure (Código General del Proceso) of Uruguay regulates a procedure for recognition and enforcement of foreign judgments even in the absence of a treaty and, when dealing with this specific subject matter, it establishes as a negative requirement to proceed that the recognition of the foreign judgment would not manifestly affect international public policy principles of the legal order of the country (Art 539.1.8).

82  Marcos Dotta Salgueiro Even though not being yet fully recognised as an autonomous concept in all jurisdictions, the international public policy ground for refusal that may be understood as the rationale behind the provision of Article 7(1)(c) – and distinguished from a mere public policy clause – is g­ aining support in recent years, both within academia,33,34 and in international legal instruments.35 The rich discussions during the elaboration of the Convention, and its incorporation in the Explanatory Report, shows that there are still developments to consider in this regard, as well as an enriching dialogue among legal systems ahead that may allow us to move from an ‘unfamiliar’ term to the recognition of a familiar, common concept behind the term, as, at least in some cases, the underlying tension relating to these concepts could be more linguistic than substantive. Read as a whole, the provision of Article 7(1)(c) has three elements: it includes the general provision on public policy, as has been seen, but also develops two specific kinds of possible public policies, that have been considered important enough to States to be fully and expressly stated. They are ‘situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’ (a provision that goes beyond the sole notification of the document which instituted the proceedings, covered by Article 7(1)(a)(i), and includes a substantive understanding of due process) and ‘situations involving infringements of security or sovereignty of that State’, as a general but significant last defence that, as any ground for refusal, should be interpreted strictly and in good faith. c.  Preliminary Questions (Article 8) Preliminary questions are those legal issues linked to the object of the proceeding that must be solved or addressed before dealing with the claim. In general, a question is not ‘preliminary’ or ‘principal’ by nature, but by the definition of the object of the claim in relation to other legal situations. According to Article 2(2) of the HCCH 2019 Judgments Convention, the principle is that the application of the Convention is determined by the object of the proceedings and not by a mere preliminary question that may arise. Meanwhile, Article 8 refers to the situation of rulings or judgments on preliminary questions that deal with excluded matters. In Article 8, the Convention establishes two rules relating to the recognition or enforcement of preliminary questions on those issues, and both can be seen as ‘grounds for refusal’. The first, in paragraph 1, refers to ‘rulings’ (not ‘judgments’), and excludes them from the possibility of being recognised or enforced under the Convention if they refer to a matter to which the Convention does not apply (eg, those excluded by Article 2(1)), or on a matter referred to in Article 6 ruled by a court of a State other than that referred to in that provision. In these situations, the requested 33 C Fresnedo de Aguirre, ‘Public Policy: Common Principles in the American States’ (2016) 379 Recueil des cours 73, 99–100: ‘National public policy consist of each State’s set of national substantive rules that cannot be left aside by the parties. However, they do not impede the application of a foreign law when such foreign law was indicated as the applicable one by the court’s conflict-of-laws rule only because their respective contents differ. To refuse the application of the foreign law the court must go further in the analysis and determine whether the application of the foreign law contravenes a fundamental principle of its legal order. Thus, international public policy consist of each State’s set of fundamental principles that cannot be left aside by any foreign law that result applicable by virtue of private international law rules’. 34 On the delineation of international public policy, see also, Verónica Ruiz Abou-Nigm, ch 11, section III.D, in this volume. 35 Currently, this concept can be found in the Agreement between the MERCOSUR and Associate States Parties on International Competent Jurisdiction, applicable law and international legal cooperation in matters of marriage, personal relations between spouses, matrimonial property regime, divorce, marital separation and non-marital union (Decision Mercosur/CMC/DEC No 58/12 of 6 December 2012, not in force and under reconsideration), which establishes in its Art 12(2), that courts may only declare foreign law inapplicable when it ‘manifestly contravenes fundamental principles of international public order of the State where it is intended to be enforced’.

Grounds for Refusal  83 State has no discretion under the Convention: those rulings on preliminary questions ‘shall not be recognized or enforced’. Even though the provision refers to ‘rulings’, we understand that Article 15 applies in any case to these preliminary questions, and thus, subject to Article 6, the disposition on Article 8(1) does not prevent the recognition or enforcement of the ruling under national law. The second rule has a wording and structure similar to Article 7(1), and is referred to judgments, whose recognition or enforcement, under this provision, may be refused if, and to the extent that, they were based on a ruling on a matter to which the Convention does not apply, or on a matter referred to in Article 6, in the same above-mentioned terms. In relation to Article 8(2), the Explanatory Report expresses, [t]he practical application of this provision requires the court of the requested State to examine the content of the foreign judgment and verify if, and to what extent, the decision on the main object of the proceedings is based on the ruling on the preliminary question. The question is whether a different ruling on the preliminary question would have led to a different judgment on the main object of the proceedings. In other words, the court of the requested State must verify whether the ruling on the preliminary question provides a necessary premise on which the judgment is based.36

Even though this approach is understandable, special attention should be paid to respect the provision of Article 4(2) when applying this potential ground for refusal. d.  Damages (Article 10) With the ground for refusal established in Article 10 (that replicates Article 11 HCCH 2005 Choice of Court Convention), the Judgments Convention recognises the differences between those legal systems that only accept the compensatory damages – whose primary objective is to repair the actual loss suffered – and those that, in addition, have instituted ‘exemplary or punitive damages’, awarded to express condemnation. Even though it is not expressed in Article 10(1), the provision may apply in a requested State that does not recognise these kinds of damages. Indeed, it can be understood that the provision is explicit in order to avoid the use of the public policy defence in those States that do not recognise exemplary or punitive damages, and is a reasonable balance between both positions. Analysing the nature of the public policy that may be behind this ground for refusal, according to Junhyok Jang: It may be a substantive policy of denying overcompensation, or a policy of delimiting the territorial reach of non-compensatory damages as not purely civil or commercial but having some element of punishment or deterrence. This question appears to be left to interpretation … The mainstream explanation for the rationales of Article 10 focuses on substantive public policy on the one hand, by emphasizing the proportionality principle, and the practical need to deter ‘forum shopping’ on the other.37

In any case, as stated in the Explanatory Report: In some States, where punitive or exemplary damages are not typically allowed, refusals to enforce such awards have been assessed under the public policy defence. However, because Article 10 addresses ­punitive or exemplary damages, the public policy defence in sub-paragraph (c) should not be used to address challenges to the recognition or enforcement of judgments on that basis. This further narrows the scope of the public policy defence under the Convention.38

36 Garcimartín 37 Jang

and Saumier (n 5) para 286. (n 31) 109. and Saumier (n 5) para 266.

38 Garcimartín

84  Marcos Dotta Salgueiro Having said that, as the provision does not link the possibility of refusal under this Article to the absence or prohibition of this kind of damages according to the law of the requested State, nothing prevents this ground for refusal to apply even in a State that recognises exemplary or punitive damages in its national law. A practical difficult issue to be dealt with in each case is how to distinguish between compensatory and non-compensatory damages, especially if they were ordered in a single amount in the judgment. This is a clear example of the need for a consideration of the merits, in line with Article 4(2), if they provide the information to determine the amounts due for each kind of damage. An Explanatory Note elaborated by the Permanent Bureau of the HCCH provides guidance in relation to these terms, that may be useful for the interpreter in a concrete given case: This provision refers to exemplary and punitive damages: both terms refer to damages that are intended to punish the defendant and to deter him or her and others from doing something similar in the future. They may be contrasted with compensatory damages, which are intended to compensate the plaintiff for the loss he or she has suffered, that is to say, to put him or her in the position in which he or she would have been if the wrongful act had not occurred.39

IV.  Refusal of Recognition and Enforcement or Refusal of Recognition or Enforcement? As can be appreciated, since its title, the HCCH 2019 Judgments Convention distinguishes between the terms ‘recognition’ and ‘enforcement’ in relation to foreign judgments. According to the Explanatory Report: Recognition usually implies that the court addressed gives effect to the determination of the legal rights and obligations made by the court of origin … Such determination of legal rights is binding on the parties in subsequent litigation. Thus, if the foreign judgment is recognised, it could be invoked, for example, to prevent proceedings between the same parties with the same subject matter (res judicata or issue preclusion defence) in the requested State and the judgment creditor would not be burdened with arguing the same claim twice.40

‘Enforcement’, on the other hand, means the application of legal procedures by the courts (or any other competent authority) of the requested State to ensure that the judgment debtor obeys the judgment given by the court of origin. Enforcement is usually needed when the foreign judgment rules that the defendant must pay a sum of money (monetary judgment) or must do or refrain from doing something (injunctive relief), and implies the exercise of the State’s coercive power to ensure compliance.41

As a consequence, recognition is not necessarily followed by enforcement (according to its nature, a foreign judgment may only need to be recognised), but when it comes to enforcement, it needs to be grounded on recognition.42 39 Explanatory Note providing background on the proposed draft text and identifying outstanding issues – Permanent Bureau of the HCCH, Preliminary Document No 2 of April 2016 for the attention of the Special Commission of June 2016 on the Recognition and Enforcement of Foreign Judgments, para 182. 40 Garcimartín and Saumier (n 5) para 113. 41 ibid, para 116. 42 In the 2001 Draft Convention, recognition and enforcement were regarded as two separate and thus independent concepts. This made sense as long as provisional measures, which may be rendered provisionally enforceable, still fell within the scope of the instrument, cf P Nygh and F Pocar, Explanatory Report, Prel Doc No 11 of August 2000, 102 et seq.

Grounds for Refusal  85 In this sense, even though the nomen iuris of Article 7 is ‘refusal of recognition and enforcement’, the chapeau of paragraph 1 is ‘recognition or enforcement may be refused if ’ and the chapeau of paragraph 2 states that ‘recognition or enforcement may be postponed or refused if ’. The French version follows the same pattern, with et and ou respectively. Taking into account the distinction made between the two concepts, the fact that the enforcement is not necessarily required when a recognition is sought – as it depends on the nature of the judgment itself and the needs of the claimant – and that Article 7, as we have seen, only establishes the specific defences or grounds under which a State ‘may’ (but in any case, is not obliged to) refuse recognition or enforcement, we understand that in a given situation, under Article 7, a State may: (i) refuse both recognition and enforcement of a given foreign judgment; (ii) admit both recognition and enforcement even though one or more grounds listed in Article 7 are met; or (iii) admit the recognition, but refuse the enforcement. The option that does not seem to be possible under the Convention is to refuse the recognition and to admit the enforcement, as recognition is a prerequisite to enforcement.

V. Conclusions The grounds for refusal included in the HCCH 2019 Judgments Convention are the incarnation of the best academic, political and realistic approach to recognition and enforcement of foreign judgments that could be established as a legal framework that aims to be global. Many of these grounds are objective, while others, requiring some kind of subjective appreciation, are bounded and explicitly narrowed in their scope. As a whole, the result is a well-balanced system, that sometimes prefers being too explicit rather than leaving some situations to interpretation. Improvements to the private international law situation before the Convention are commendable, especially taking into account that with the Convention, States have the opportunity to move from diverse, regional or domestic scenarios or approaches, to a common, universal and flexible framework, providing certainty and predictability for people and businesses. Hopefully, the current task of the HCCH Working Group on Jurisdiction will maintain and deepen this path. As has been repeatedly said, the Convention establishes a floor, not a ceiling, for recognition and enforcement of foreign judgments. Bearing this in mind is indispensable when analysing its solutions and approaches. It concentrates on areas of consensus in a complex subject matter, and 150 years after Tobias Asser’s reflection with which we opened this chapter, Member States of the HCCH achieved its ideal, while also including contents of a modern and humanist treaty of the twenty-first century, of which we should be proud. Once the Convention enters into force and starts to have effect between Contracting States, it is clear that its potential Achilles’ heel is the grounds for refusal. Nevertheless, we are optimistic that the spirit under which the Convention was negotiated and approved, as well as the clear and strict interpretation of the provisions relating to these grounds, will allow smooth implementation. In any case, the Convention itself has a disposition regarding the review of its operation (Article 21), a tool that may help States in the future in any situation relating to that stage, and builds upon the traditional great job performed by the Permanent Bureau of the HCCH.

86

5 Article 29 of the HCCH 2019 Judgments Convention: From a Mechanism on Treaty Relations to a Catalyst of a Global Judicial Union JOÃO RIBEIRO-BIDAOUI* AND CRISTINA M MARIOTTINI**

I. Introduction The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (hereafter the Judgments Convention or the Convention),1 intends to promote cross-border access to justice for both businesses and individuals by creating the premises for a more predictable and cost-effective system for the circulation of foreign judgments. The Convention is, in fact, set to expedite and improve the cross-border recognition and enforcement of foreign judgments, which forms an integral part of the right of access to justice: against this background, the Convention facilitates rule-based multilateral trade and investment, and mobility, through judicial cooperation.2 * Dr João Ribeiro-Bidaoui, former First Secretary and Diplomat Lawyer (2018–22) at the Permanent Bureau (PB) of the Hague Conference on Private International Law, where he headed the Transnational Litigation Division, with primary responsibility over the Working Group on Jurisdiction, the 2005 Choice of Court and 2019 Judgments Conventions, the Principles on Choice of Law, the Tourists and Visitors (ODR) Project, as well as the 1965 Service, 1970 Evidence, and 1980 Access to Justice Conventions. He had charge over the final phases of the Judgments Project, which resulted in the adoption, at the Twenty-Second HCCH Diplomatic Session, of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The views expressed here are entirely personal. ** Dr Cristina M Mariottini is a Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law, formerly Senior Legal Officer and consultant to the Hague Conference on Private International Law during the negotiations that led to the adoption of the 2019 HCCH Judgments Convention. The views expressed here are entirely personal. 1 The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters was adopted in the framework of the Twenty-Second Diplomatic Session of the Hague Conference on Private International Law (HCCH), convened from 18 June to 2 July 2019 at The Hague. On 29 August 2022, the European Union (EU) deposited its instrument of accession to the Convention, becoming its first Contracting Party. Shortly after on the same date, Ukraine deposited its instrument of ratification. In accordance with Art 28, the Convention will enter into force on 1 September 2023. The EU’s accession will bind all EU Member States, with the exception of Denmark. The Convention was also signed by Uruguay in 2019, by Costa Rica, Israel and the Russian Federation in 2021, and by the United States of America in 2022. Unless otherwise stated, the documents mentioned in this chapter and pertaining to the Judgments Convention, including the Convention’s preparatory work and the full text, are available on the website of the HCCH at: www.hcch.net, under the ‘Judgments’ section. A comprehensive bibliography on the Convention is also available under the same section. On the history of the Convention see, in part, Xandra Kramer, ch 1, esp section I, in this volume. 2 cf the Preamble of the Judgments Convention.

88  João Ribeiro-Bidaoui and Cristina M Mariottini Among the features that allow the Convention to pursue its objectives is the procedure set out in Article 29, regulating the establishment of treaty relations: built on a trust-based, tacit acceptance mechanism, the provision at Article 29 enables States to establish plurilateral treaty relations, balancing trust among, and autonomy of, States when joining the Convention. HCCH Conventions display, albeit with different approaches, a certain tradition and familiarity with mechanisms intended to contain the openness of a convention: in this context, Article 29 of the Judgments Convention combines established and unique characters that warrant a more in-depth analysis of the provision’s individual features and of its significance with respect to the Convention itself and treaty negotiations, more generally. In fact, by stating that the Convention only applies provided neither the State of origin nor the requested State have notified that treaty relations are not to be established between them, Article 29 of the Judgments Convention creates the premises whereby any adhering State may proactively and pre-emptively shape the treaty relations established under the Convention in a manner that satisfies its individual expectations.3 Hence, by laying down a mechanism that permits States to reciprocally exclude, even if temporarily, treaty obligations which would otherwise stem from the Convention, Article 29 establishes a system designed to encourage a widespread adherence to the Convention while protecting the ‘freedom of choice’ of States.4 However – as will be further expounded in this chapter – from a more holistic viewpoint the significance of the mechanism laid down at Article 29 may be construed as going beyond the boundaries of this single Convention and as providing the key legal infrastructure for a progressively global judicial union.5 After tracing the genesis of Article 29 of the Judgments Convention (section II), this chapter illustrates the peculiar features of this provision, for example, by contextualising the provision and referring to similar mechanisms implemented in other HCCH Conventions, and proceeds to examine this provision in the framework of the Convention as well as in the context of global judicial cooperation (section III), before offering concluding remarks (section IV).

II.  The System Established Pursuant to Article 29 A.  Genesis of the Provision While repeatedly addressed during the discussions that preceded the Twenty-Second Diplomatic Session,6 no provision on the establishment of treaty relations was ultimately introduced into

3 A proponent of a safeguard mechanism along the lines of the one established with Art 29 of the Judgments Convention while the Convention was still being negotiated: A Bonomi, ‘New Challenges in the Context of Recognition and Enforcement of Judgments’ in F Ferrari and DP Fernández Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar 2019) 406 et seq. cf also, A Bonomi, ‘Quelques remarques sur l’accession de l’UE à la Convention de La Haye’ in Groupe européen de droit international privé (GEDIP), ‘Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments’, Annexe 4, para 3. 4 F Pocar, ‘Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere’ (2021) 1 Rivista di diritto internazionale privato e processuale 6, 24 et seq; P Jenard, ‘Une technique originale: La bilatéralisation de conventions multilaterales’ (1996) 2 Rev BDI 386, 387. 5 T Asser, ‘XXX. De l‘effet de l’éxecution des jugements rendus à l‘étranger en matière civile et commerciale’ [1869] Revue de droit international et législation comparée 492–93; Jenard (n 4) 387. 6 See WD 78 of the Special Commission of 16–24 February 2017; Report of Meeting No 13, para 69 et seq; Aide Memoire of February 2017, para 57; and Report of Meeting No 10 of 17 November 2017, para 26. These documents may be found in Proceedings of the Twenty-Second Diplomatic Session (forthcoming). On the role of travaux préparatoires in the interpretation of a Convention and of the obligations arising therefrom, see recently, J Ribeiro-Bidaoui, ‘The International

Article 29 of the HCCH Judgments Convention  89 the text of the draft Convention that was eventually submitted to the Diplomatic Session for its consideration.7 In fact, in the course of the preliminary stage of the discussions, the prospect of a provision modulating the establishment of treaty relations did not garner sufficient support.8 However, in the months prior to the Twenty-Second Diplomatic Session, which was convened from 18 June to 2 July 2019 at The Hague and further to which the Convention was ultimately concluded, a proposal was put forward suggesting the insertion of a provision on the establishment of treaty relations.9 On the grounds that the Judgments Convention, when adopted, would profoundly transform the recognition and enforcement of foreign judgments − simplifying it and representing a ­relevant change from the established practice in many States − and that recognition and enforcement may be refused solely on the limited grounds specified in the Convention, the proponents raised the concern whereby the Convention, absent some sort of entry-control mechanism, would not pass the test of national legislatures, to the detriment of the success of the entire project. The underlying assumption of such a claim was that due process and rule of law were not uniformly spread among all jurisdictions. To enhance the prospect of success of the Convention, the proponents drafted two alternatives, one providing for the establishment of treaty relations in the absence of an objection (tacit acceptance) and one providing for the establishment of treaty relations upon acceptance by each State (explicit acceptance). Cognisant of the extensive participation of States both at the Diplomatic Conference and in the membership of HCCH, the proponents also suggested that − unlike in the mechanisms traditionally included in HCCH Conventions, where entry-control mechanisms only apply to those States that acceded to the Convention (and not to the States that partook in the negotiations leading to the adoption of the Convention)10 − the entry-control mechanism of the Judgments Convention should operate vis-a-vis all States. Building on this framework, in the course of the Twenty-Second Diplomatic Session a subsequent proposal was made, focusing solely on the establishment of treaty relations based on tacit acceptance and suggesting two amendments to the initial proposal.11 On the one hand, two separate time frames were proposed for the notification of the objection (i) by a Contracting Party, for which the term of 12 months was suggested, and (ii) by a ratifying, accepting, approving or acceding State, for which the objection could only be made at the time of the deposit of its instrument of adherence to the Convention. The different time frame was justified by the assumption that, while a State that is in the process of joining the Convention has, before it deposits its instrument of adherence, the time to assess whether it wishes to avoid entering into treaty obligations with an existing Contracting Party, assessing the desirability of establishing relations with a new State requires giving a Contracting Party or, even more so, a Regional Economic Integration Organisation (REIO) that is already Party to the Convention a reasonable amount of time to do so. On the other hand, the proposal included the possibility of a Contracting Party also making such notification at a later time. On the grounds that specific limits to the reliance on this Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations’ (2020) 67 Netherlands International Law Review 139, esp 149 et seq; 159 et seq. 7 cf, esp, the Draft Convention of May 2018, in Proceedings of the Twenty-Second Diplomatic Session (forthcoming). 8 See, in part, Report of Meeting No 13 of 26 June of the Twenty-Second Diplomatic Session, ivi. 9 cf WD 24 of 17 May 2019, ivi. 10 For a more detailed exposé on this aspect, cf below, section III. 11 This proposal was initially made in Info Doc No 7 of June 2019, ‘Non-paper on Article 29’, drawn up by the Chair of the informal working group on General and Final Clauses, and was subsequently retained in WD 24 REV of 25 June 2019. Both documents may be found in Proceedings of the Twenty-Second Diplomatic Session (forthcoming). See also, Report of Meeting No 11 of 25 June 2019 and Report of Meeting No 13 of 26 June 2019, ivi.

90  João Ribeiro-Bidaoui and Cristina M Mariottini provision would negatively affect a Contracting Party’s sovereign decision to exercise its authority over the establishment of treaty relations under the Convention, the proposal introduced the possibility that a Contracting Party might − possibly subject to exceptional circumstances or a strong objection – ‘at any time notify the depositary of its objection to the continuation of treaty relations with another Contracting State’.12 A notification made under this paragraph would have not been applicable to judgments resulting from proceedings already instituted in the State of origin when the objection takes effect.

B.  Essential Traits of the Mechanism Set Forth at Article 29 In the version that was ultimately retained in the text of the Convention, Article 29 relies on a mechanism according to which the Judgments Convention shall solely have effect between two Contracting Parties provided that neither of them has notified the depositary of its intention to exclude relations with the other in accordance with the Convention.13 Pursuant to paragraphs 2 and 3 of the same provision, such notification may be made either where a Contracting Party notifies the depositary that it does not wish to establish relations with a State which has deposited its instrument of ratification or accession, or where a State that is in the process of joining the Convention notifies that it wishes to refrain from establishing relations with an existing Contracting Party. Consequently, the entry-control mechanism established in Article 29 is available, without distinction, in case of ratification, approval, acceptance, as well as of accession to the Convention, to the exclusion of any discrimination between adhering States. The reliance on the notification is to be understood as reserved to non-unified States and REIOs in their entirety: in fact, notifications made in accordance with Article 29 are available only as between Contracting Parties and not in relation to individual territorial units of nonunified States or to the individual Member States of a REIO.14 The time frame for the notification varies based on whether it is made by the Party in the process of entering into the Convention or by an existing Party to the Convention. In the former case, such notification is to occur upon the deposit of the Party’s instrument of adherence to the Convention, whereas in the latter case the Party may rely on a period of 12 months to notify its objection. Departing from the proposals made in the course of the negotiations in favour of the possibility of objecting to ongoing treaty relations, the mechanism set out at Article 29 is available only once for each bilateral relation established under the Convention, and only within the time limits set out under the provision. While the idea of containing the otherwise unmitigated openness of the Convention was the object of a broad consensus, some hesitancy was expressed by some delegations with regard to maintaining the same notification permanently available to the Contracting Parties. Notably, against this possibility it was suggested that the grounds for creating a qualifying judgment that circulates under the Convention and the grounds for refusal under Article 7(1)(c) should be construed as providing a sufficient safeguard against judgments 12 WD 24 REV of 25 June 2019, subsequently also reproduced in WD 24 REV of 27 June 2019, in Proceedings of the Twenty-Second Diplomatic Session (forthcoming); see also, Report of Meeting No 11 of 25 June 2019; Report of Meeting No 13 of 26 June 2019; and Report of Meeting No 15 of 28 June 2019, ivi. 13 Art 24(4) of the Judgments Convention identifies in the Ministry of Foreign Affairs of the Kingdom of the Netherlands the depositary of the Convention. 14 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 411. cf also WD 24 REV of 27 June 2019, in Proceedings of the Twenty-Second Diplomatic Session (forthcoming), and Report of Meeting No 15 of 28 June 2019, ivi.

Article 29 of the HCCH Judgments Convention  91 rendered in legal systems that fail to comply with the rule of law.15 Consequently, the proposed open-ended possibility of notification was construed by some as an unnecessary addition and potentially detrimental to the success, in practice, of the Convention.16 Furthermore, the proponents did not clarify how such an open-ended and unilateral possibility would be in accordance with the mechanism for the suspension of operation of treaties under Articles 57 and 58 of the Vienna Convention on the Law of Treaties.17 In the spirit of compromise, this led to ultimately casting aside the part of the proposal which would have allowed Contracting Parties to make a notification to suspend or withdraw from treaty relations with a certain Party at any time.18 And, indeed, the final agreement avoided what, for some, could be seen as a system purported to be politically weaponised and thus undermine the key objectives of the new global framework. It follows that, pursuant to Article 29, a Contracting Party cannot discontinue treaty relations with another Contracting Party on the grounds that the latter State has ceased to respect the rule of law and that its courts lack independence, impartiality or neutrality. In this regard, while it has been contended that expanding the availability of the Article 29 notification beyond the current limited time frame could amount to a safeguard against subsequent and unforeseeable shifts in the rule of law of a Contracting Party,19 the opposite argument may be made whereby, limiting the time frame to notify a State’s intention to delay or avoid treaty relations with another State may function as an incentive to perform, at the very outset of the (potential) relationship, a more complex and in-depth assessment. Finally, to foster a harmonised global system of circulation of judgments in civil or commercial matters and facilitate judicial cooperation, according to Article 29(4) the notifications preventing the establishment of treaty relations made in accordance with paragraphs 2 and 3 of the same provision may be withdrawn at any time. It ensues that the notification under Article 29 may only be made once, and within the limited time frame set out under the provision. Its withdrawal is possible at all times; however, once it is withdrawn, the notification may not be filed again. This section described the genesis of Article 29, including some of the policy considerations informing the negotiations leading up to its drafting, before outlining the essential traits of the mechanism. The next section will place the discussion around Article 29 in the broader context of how treaty relations have been traditionally framed within the Hague Conference. It will further position the said system of establishing treaty relations as part of an integrated conventional design which includes Article 7(1)(c).

III.  Framing Treaty Relations A.  Overcoming Discrimination: Forsaking any Distinctions between Adhering States The mechanism implemented with Article 29 of the Judgments Convention to govern treaty ­relations combines conventional but also innovative features. Similar to some of its precursors, 15 cf, esp, Report of Meeting No 13 of 26 June 2019 and Report of Meeting No 15 of 28 June 2019 in Proceedings of the Twenty-Second Diplomatic Session (forthcoming). 16 ibid. 17 UN Convention on the Law of Treaties, done at Vienna on 23 May 1969 and entered into force on 27 January 1980, UNTS 1155, 331. 18 WD 24 REV of 27 June 2019 in Proceedings of the Twenty-Second Diplomatic Session (forthcoming); see also, Report of Meeting No 15 of 28 June 2019, ivi. 19 Groupe européen de droit international privé (GEDIP) (n 3) 20, para 5.

92  João Ribeiro-Bidaoui and Cristina M Mariottini the system relies on a tacit acceptance mechanism. As illustrated in detail in the Annex to this chapter, such mechanism is not, per se, a novelty in the drafting history of the HCCH Conventions. However, the treaty-drafting tradition under the aegis of the Hague Conference is characterised by various approaches to openness of the treaty. Of the 39 conventions concluded under the auspices of the Hague Conference, four are entirely open, including the Convention of 30 June 2005 on Choice of Court Agreements, the Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary and the Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. Twelve Conventions are restricted – in terms of ratification, approval or acceptance – to Members of the HCCH, whereas 18 Conventions implement an alternative mechanism whereby ratification, approval or acceptance are only open to States present at the Diplomatic Session.20 Against this background, clauses regulating the establishment of treaty relations vis-a-vis accession are not a new phenomenon in HCCH Conventions. Unlike the terms ‘ratification’, ‘approval’ or ‘acceptance’, which define the act whereby a State conveys its consent to be bound to a treaty it negotiated, the term ‘accession’ is generally understood to define the act whereby a State accepts the offer or the opportunity to become a Party to a treaty already negotiated and signed by other States.21 Procedures in accordance with which treaty relations are established absent an objection (tacit acceptance of accession) exist in various forms in HCCH Conventions and emphasise that only an existing Contracting Party can object to accession of a new State. A tacit acceptance mechanism is found, for instance, in the Convention of 5 October 1961 Abolishing the Requirement of Legalisation of Foreign Public Documents and the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. Pursuant to such Conventions, acceding States do not have a right of veto and, on the contrary, have to accept all existing Contracting Parties. On the other hand, seven Conventions apply the principle of explicit acceptance of accession, including the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. In this case, as well, the power to regulate the establishment of treaty relations is limited to Contracting Parties, which shall be bound under the Convention with an acceding State only subject to a declaration of acceptance of the accession of the latter.22 And even more noteworthy is the case of those Conventions adopting unrestricted accession subject to ‘veto’, like the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. According to its Article 28, the Convention shall only enter into force for an acceding State in the absence of any objection from a State, which has ratified the Convention before such deposit. This means that one single objection would be enough to prevent any acceding State to see the Convention entering into force for that aspiring Party. It is noted that this more extreme form

20 For details, see the Annex to this chapter, esp sections 3–8. 21 See Art 15 of the UN Convention on the Law of Treaties providing that ‘[t]he consent of a State to be bound by a treaty is expressed by accession when: (a) the treaty provides that such consent may be expressed by that State by means of accession; (b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or (c) all the parties have subsequently agreed that such consent may be expressed by that State by means of accession’, UN Convention on the Law of Treaties, done at Vienna on 23 May 1969 and entered into force on 27 January 1980, UNTS 1155, 331. 22 See, in part, WD 61 (IWG on General and Final Clauses) and Report of Meeting No 11 of 25 June in Proceedings of the Twenty-Second Diplomatic Session (forthcoming). For a historical overview of the mechanisms shaping treaty relations in accordance with HCCH Conventions, cf CM Mariottini, ‘Establishment of Treaty Relations under the 2019 Hague Judgments Convention’ (2019/20) 21 Yearbook of Private International Law 365, 369.

Article 29 of the HCCH Judgments Convention  93 of conditioning the establishment of treaty relations has never been used, since the Convention entered into force in 1969. The Convention has now 79 Contracting Parties from all continents and legal traditions.23 Quite significantly and unlike its predecessors, the system created with Article 29 of the Judgments Convention overcomes any distinctions between, on the one hand, ratifying, accepting and approving States and, on the other, acceding States. In fact, such mechanism is made available and designed to apply vis-a-vis any State that joins the Convention, and not only in relation to States that are not Members of the Hague Conference or that did not partake in the negotiations leading to the conclusion of the Convention. Accordingly, by applying to any form of adherence to the Convention, the mechanism put forth with Article 29 overcomes the differentiation between States that otherwise characterises the mechanisms of tacit (but also explicit) acceptance implemented in accordance with the previous HCCH Conventions. Hence, in the framework of the Judgments Convention, all States are guaranteed the possibility to shape the geographical scope of application of the Convention as between themselves and the other States. The departure from the traditional distinction between ratifying, accepting and approving States, on the one hand, and acceding States, on the other, in regulating the establishment of treaty relationships reasonably originates both in the scope of application of the Judgments Convention and in the progressively enlarged membership of the Hague Conference. The scope of the Convention – which regulates the circulation of judgments in civil or commercial matters within the meaning provided in Articles 1 and 2 of the Convention – may trigger an increase in the degree of caution that Contracting Parties adopt towards ratifying, accepting, approving and acceding States alike and, consequently, may justify providing a treaty establishment system that applies indiscriminately to all adhering States. The circulation of judgments in civil or commercial matters is, in fact, understood as interfacing with State sovereignty as a result of the fact that, in recognising and enforcing a foreign judgment, the requested State recognises the adjudication of the dispute performed by a foreign court and, indirectly, its jurisdiction.24 In this respect, it is worth recalling that the Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (HCCH 1971 Enforcement Convention) was also characterised by a similarly broad scope of application, and commanded a ‘two-step bilateralisation’ system for the establishment of treaty relationships under the Convention. Notably, it enabled Contracting Parties to implement the treaty in bilateral relations with the other Contracting Parties of their choice, but only subject to the conclusion of supplementary agreements.25 On the other hand, the Hague Conference’s pursuit of universality has led, especially in recent years, to a significant expansion in the Conference’s membership, which now counts a

23 The status of the HCCH 1965 Service Convention is available at: www.hcch.net/en/instruments/conventions/ status-table/?cid=17. 24 cf esp C Kessedjian, ‘International Jurisdiction and Foreign Judgments in Civil and Commercial Matters’, Prel Doc No 7 of April 1997 for the attention of the Special Commission of June 1997 on the question of jurisdiction, and recognition and enforcement of foreign judgments in civil and commercial matters, paras 13–14 in Proceedings of the Twentieth Session (2005), Tome II, Judgments, 13. 25 This mechanism is laid down at Art 21 of the HCCH 1971 Enforcement Convention, according to which, ‘Judgments given in a Contracting State shall not be recognized or declared enforceable in another Contracting State, in accordance with the provisions of the preceding Articles, unless both States, after becoming Parties to the Convention, have so agreed by Supplementary Agreement’.

94  João Ribeiro-Bidaoui and Cristina M Mariottini total of 90 Members, namely 89 States and one REIO (the European Union).26 Against this background, more than 400 delegates, representing 81 States and observers from around the world, participated in the Twenty-Second Diplomatic Session.27 It ensues that any distinctions based on the form of a State’s adherence (as a result of a State’s involvement in the negotiations and/or its membership of the Hague Conference on Private International Law) would ultimately have had only a negligible impact on a Contracting Party’s exercise of any meaningful and effective control in designing its treaty relationships under the Convention. This section made clear how the Convention overcame discrimination between States by forsaking any distinctions between adhering Contracting Parties. It further noted that, while some may argue for caution in joining the Convention because of its apparently innovative system under Article 29, such bilateralisation mechanisms have a long and successful tradition under multiple private international law conventions and, therefore, should not amount to a critical obstacle for States to consider joining the Convention.28

B.  The Interface between Article 29 and Article 7(1)(c) of the Judgments Convention The mechanism set out pursuant to Article 29 is essentially meant to regulate the establishment of treaty relations with countries where the rule of law and fundamental due process requirements are perceived as regularly disregarded and to provide, as such, a pre-emptive instrument of delay and avoidance to the Contracting Parties that do not wish to be bound with those countries under the Convention. As seen above, the mechanism laid down in Article 29 is available only once for each bilateral relation established under the Convention, and only within the time limits set forth in the Convention: in fact, while, according to Article 29(4), a notification may be withdrawn (purportedly, when adherence to, and compliance with, the rule of law improves in the country targeted with an Article 29 notification), a new notification may not be made if the situation subsequently deteriorates. A protection to some extent similar to the one afforded under Article 29, albeit operating limitedly to single judgments and not with regard to the country of origin overall, is afforded to the requested State in accordance with Article 7(1)(c) of the Judgments Convention.29 Pursuant to this provision, the court of the requested State may, in fact, refuse recognition and enforcement

26 cf, esp, ‘The Pursuit of Universality as a Strategic Objective of the Hague Conference on Private International Law and Ways to Achieve It’, Prel Doc No 1 of March 2016 for the attention of the Council of March 2016 on General Affairs and Policy of the Conference, available at: assets.hcch.net/docs/8e24863c-0656-436d-acdf-52b4717f0406.pdf. The updated table of the Hague Conference’s membership is available at: www.hcch.net/ en/states/hcch-members. 27 See, ‘Gamechanger for cross-border litigation in civil and commercial matters to be finalised in the Hague’, available at: www.hcch.net/en/news-archive/details/?varevent=683. 28 See, eg, the ‘Commission Staff Working Document Impact Assessment Report Accompanying the Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’ SWD(2021) 192 final, Annex II, 54, reflecting how in principle, in the framework of the Impact Assessment’s stakeholder consultation, ‘it was proposed to take advantage of Article 29 of the Convention’. More critical H Schack, ‘Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen’ [2020] Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1, 6: ‘Wenn die von Art 29 HAVÜ erlaubte Bilateralisierung (oben II) Schule macht, ist das HAVÜ nichts weiter als die Fassade eines multilateralen Übereinkommens’ [which freely translates as: If the bilateralisation mechanism provided by Art 29 HCCH 2019 Judgments Convention is widely used, the Convention will be nothing more than the façade of a multilateral convention]. 29 On the principles that underlie Art 7(1) see Marcos Dotta Salgueiro, ch 4, esp section III.B, in this volume.

Article 29 of the HCCH Judgments Convention  95 of a foreign judgment where ‘recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’. Both Article 29 and Article 7(1)(c) appear to operate as a protection against judgments that fail to meet the standards commonly expected of an impartial and independent judiciary. However, while Article 29 and Article 7(1)(c) partly pursue similar objectives, they do it from different standpoints: Article 29 creates the premises for, and encourages, a widespread adherence to the Convention, whereas Article 7(1)(c) embodies the ultimate boundary which comes into play if ‘everything else’ has not worked. While concerns about systemic lack of due process may have informed the design of Article 7(1)(c),30 and while this provision might theoretically suffice to address them, some ­practical considerations clearly speak in favour of inclusion in the text of the Judgments Convention of the provision at Article 29. Leaving to the court addressed the duty to assess the impartiality and independence of the judiciary in the State of origin, as could be the case if Article 7(1)(c) were not to be complemented by Article 29, would be significantly burdensome: notably, it would entail the evaluation of ‘systemic’ lack of due process, as opposed to the more limited evaluation of the (in)compatibility of a judgment with the legal system of the State addressed.31 Inferring the whole picture with regard to the impartiality and independence of a foreign legal system is a taxing predicament that better falls under the aegis of a Contracting Party. However, that task would be directly allocated to the court addressed, instead, if the court were left to rely only on Article 7(1)(c) in these instances. Furthermore – unlike the case under Article 29, which does not require that the notification be motivated – in accordance with Article 7(1)(c), and subject to the lex fori, the court addressed would find itself in the diplomatically uncomfortable position of having to motivate its decision, cognisant of the possible ramifications.32 In the context of proceedings for the recognition and enforcement of foreign judgments, courts have at times relied on the principle of comity to suggest caution in denying acknowledgment to a foreign court’s exercise of judicial power as a legitimate component of the legal system of the country of origin.33 Similarly, the position has been taken in accordance to which suspicions of systemic defects of the court of origin should be left only for extreme cases, including in those instances where the court of origin is part of a regime that the State addressed may construe as authoritarian: the mere fact that, in the requested State’s perception, the State of origin qualifies as authoritarian should not, per se, be a barrier to the circulation of a judgment on the grounds of public policy.34 In accordance with this view, in determining whether the court of origin satisfies

30 See, eg, D Goddard, ‘The Judgments Convention: The Current State of Play’ (2019) 29 Duke Journal of Comparative & International Law 473, esp 488. cf also, The American Law Institute, Restatement (Third) Foreign Relations Law § 482(1)(b) and Restatement (Fourth) Foreign Relations Law §483(a), §484(h). 31 Mariottini (n 22) 368; Groupe européen de droit international privé (GEDIP) (n 3) 20, para 5; see also, C Kessedjian, ‘Discussion sur la consultation de la Commission à propos de l’éventuelle ratification par l’UE de la Convention de La Haye de 2019’, ivi, esp 128. 32 cf, eg, Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2470 [98] emphasising how such an assessment, while made with regard to a single case, ‘has potentially broad ramifications’. 33 Kuwait Finance House (Bahrain) BSC v Teece [2017] NZHC 1308, [2018] 2 NZLR 257 [63]. 34 Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2012] 1 WLR 1804. [32]; see also, Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 (HL) 976, stating that judgments of courts of authoritarian regimes (in the instant case, the German Democratic Republic) could be eligible for recognition and enforcement in the United Kingdom on the grounds that, absent evidence that the courts of East Germany were not courts of law at all or

96  João Ribeiro-Bidaoui and Cristina M Mariottini the criteria of a judicial tribunal and has the fundamental attributes to be recognised as a court for the purpose of enforcing one of its decisions, the focus should not be placed on the nature of the regime of the State of origin and, rather, it should encompass the court of origin’s nature and function within the setting of the domestic local system.35 Such an approach has been taken, notably, in recent judgments on the recognition and enforcement in New Zealand of judgments originating from Bahrain and the People’s Republic of China, respectively.36 In particular, seised with a request for recognition and enforcement in New Zealand of a money judgment rendered by the Higher People’s Court of Hebei, the New Zealand High Court recently identified in two aspects the focus of its enquiry with regard to the notion of ‘court’ and, more broadly, of judicial independence of the State of origin: (a) whether the bodies carrying out judicial functions are distinct from those with legislative and administrative function; and (b) whether the bodies carrying out judicial functions are subject to improper interference. In particular, the requested court found elements of reassurance in the fact that China has a written constitution which provides for the separation of powers; provisions in the Civil Procedure Law regulate jurisdiction in China; there are legal requirements for the appointment of judges; in general, court proceedings are in public; parties are entitled to retain representatives; the judicial committee of the Supreme People’s Court may give guideline interpretations of the law with a view to ensuring the uniform application of the law throughout the Chinese legal system (although, in the instant case, the hearings were by collegial benches only and no judicial committee was involved).37 In particular, the New Zealand High Court observed that, per se, a different approach to maintaining good standards by courts in China does not warrant the conclusion that Chinese courts are not ‘courts’ for the purpose of recognition and enforcement of their decisions.38 In this framework, the requested court concluded that it would be an over-reaction to refuse to recognise all Chinese courts, because at times decisions have been made not because of the merits of a case, but because the judges consider that they must meet the expectations of the local people’s congress or branch of the Communist Party. In a proceeding to enforce the judgment of a Chinese court, the better approach is to see whether justice was done in the particular case. Instead of saying that China does not have courts, the inquiry is whether the judgment debtor has any of the standard affirmative defences, including breach of natural justice’.39 that their decisions were corrupt or perverse, ‘a mere difference in philosophy, or even of method, so far from entitling us to prefer the West German approach, on the contrary gives support to those who argue that the East German variety of German law should be taken as being the law in East Germany’. Similarly, in Kuwait Finance House (Bahrain) BSC v Teece [2017] NZHC 1308, [2018] 2 NZLR 257 [16]. Similarly, the Second Circuit Court of Appeals was not persuaded that justice could not be done in Venezuela in Blanco v Banco Industrial de Venezuela, 997 F 2d 974 (2nd Cir 1993). See also Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 [32] and Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687 [90]. 35 Kuwait Finance House (Bahrain) BSC v Teece [2017] NZHC 1308, [2018] 2 NZLR 257 [16]. 36 [2018] 2 NZLR 257; Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 and reiterated in Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687. 37 Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 [43]–[51]. On the distinction between the macro-control of the Chinese judicial system and the micro-control of the individual case by the CCP, see Zheng Tang, ch 14, esp section IV, in this volume. 38 [2020] NZHC 2992 [57]. For a more nuanced approach, see in the same case [2021] NZHC 2687 [78] et seq, citing Minister of Justice v Kim [2021] NZSC 57. 39 [2020] NZHC 2992 [58]. By contrast (but consistently with the premise whereby suspicions of systemic defects should be left for extreme cases), a Liberian judgment was refused recognition on the premise of the absence of an effectively functioning court system in Liberia: while Liberia had its constitution modelled on that of the United States, the US courts ruled that impartial and independent tribunals did not exist in Liberia, since the country was ravaged by a civil war, its constitution was suspended, its courts barely functioned, rights of litigants were ignored, corruption and incompetence were prevalent, and judges served at the will of the leaders of warring factions and were subject to political and social influence. Bridgeway Corporation v Citibank, 45 F Supp 2d 276 (SDNY 1999), upheld on appeal, 201 F 3d 134 (2nd Cir 2000). Refusing recognition of a judgment from Iran, see Bank Melli Iran v Pahlavi, 58 F 3d 1406 (9th Cir 1995).

Article 29 of the HCCH Judgments Convention  97 Significantly departing from this interpretation and deviating also from the growing trend in favour of the recognition of Chinese judgments in the United States,40 the Supreme Court of New York recently questioned the adequacy of the Chinese judicial system in the context of judgments recognition and declined the request for enforcement of a monetary judgment rendered by the Beijing Higher People’s Court on the grounds that the judgment ‘was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law’.41 The court addressed relied on the 2018 and 2019 State Department’s Country Reports on Human Rights Practices in accordance to which ‘judges regularly received political guidance on pending cases, including instructions on how to rule, from both the government and the [Chinese Communist Party], particularly in politically sensitive cases’ and stating that ‘corruption often influenced court decisions’.42 Notably, in the Court’s view these reports ‘conclusively establish as a matter of law that the PRC judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law in the United States’.43 Overall, the array of approaches illustrated above show that direct and sole reliance on Article 7(1)(c) to counter systemic lack of due process of the court(s) of origin may lead to unpredictable results, is fraught with evidentiary uncertainties, and is likely to prolong litigation: as such, it is not comporting with the objective of a smooth and sound administration of justice. Accordingly, the inclusion of the provision at Article 29 is to be welcome as a possible helm of treaty relations that States can rely on when joining the Judgments Convention. However, regardless of its ‘inherent shortcomings’ vis-a-vis judgments originating in countries that fail to meet the due process and rule of law standards, Article 7(1)(c) may still play a crucial role in those instances. While a notification under Article 29 of the Convention may mitigate the openness of the Convention and provide a remedy against the most egregious situations, there are inherent difficulties in the implementation of this provision. Formulating an objection in accordance with Article 29 entails a clarity of vision and prompt reactivity on the part of the notifying State which may not always prove easy to satisfy in practice:44 where a State is not reactive or proactive enough to make the notification within the time frame dictated by the Convention, it irretrievably misses the opportunity to benefit from such mechanism. Therefore, as a result of the fact that the Article 29 notification is a one-time opportunity (since it may only be made at the outset of a Party joining the Convention), should there be a shift in the impartiality and independence of the judiciary of a Contracting Party after States have joined the Convention, those States will be precluded from discontinuing the treaty relations with that State in accordance with Article 29 and may only rely on the safeguard afforded pursuant to Article 7(1)(c). In this respect, for future reference and in future negotiations, it has been suggested considering expressly including in the wording of the provision, under the public policy exclusions, the ‘independence, impartiality or neutrality of the court of origin’ by going beyond the reference to the ‘fundamental principles of procedural fairness’ of the State of origin.45

40 cf WS Dodge and W Zhang, ‘Reciprocity in China–US Judgments Recognition’ (2020) 53 Vanderbilt Journal of Transnational Law 1541. 41 Shanghai Yongrun Investment Management Co v Kashi Galaxy Venture Capital Co, 2021 NY Misc LEXIS 2492; 2021 NY Slip Op 31459(U). 42 www.state.gov/reports-bureau-of-democracy-human-rights-and-labor/country-reports-on-human-rights-practices/. See also WS Dodge and W Zhang in conflictoflaws.net/2021/new-york-court-denies-enforcement-of-chinese-judgmenton-systemic-due-process-grounds/. 43 NY Misc LEXIS 2492 [15]; 2021 NY Slip Op 31459(U) [6]. 44 Groupe européen de droit international privé (GEDIP) (n 3) 20, para 4. 45 cf esp, Kessedjian, ‘Discussion sur la consultation’ (n 31) Annexe 5, 130.

98  João Ribeiro-Bidaoui and Cristina M Mariottini On a final note and in favour of a conservative recourse to the system established with Article 29, it is worth observing that absent an Article 29 notification, the non-mandatory character of Article 7(1)(c) does not hinder and, rather, permits the recognition and enforcement of a judgment from a disputed legal system rendered in otherwise procedurally fair proceedings.46 The court of the Contracting Party addressed has, in fact, the power to grant recognition and enforcement, regardless of the flaws it perceives in the legal system of origin: while Article 7(1)(c) is phrased in a manner as to tackle the manifest incompatibility of the foreign judgment with the public policy of the requested State, ‘including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’, the list of grounds for refusal of recognition and enforcement at Article 7 is exclusive (the requested court may only rely on these grounds to refuse recognition and enforcement), but not mandatory. One can also add that even if a Party has made the notification, and therefore made the world aware of its concerns in relation to the judicial integrity of an acceding Party, nothing seems to prevent its own courts from continuing to recognise and enforce judgments from that same jurisdiction under its domestic law. That said, a notification by the State will most probably be taken into consideration by its own courts when making a decision on such cases. So, even indirectly, the Convention and the system in Article 29 will introduce a negative predictability, by clarifying the probability of non-circulation of judgments from certain States. As such, it becomes a powerful inducer and incentive for any State, subject to the notification, to substantively and noticeably introduce measures which enhance the international trust in its judicial system. This section addressed the distinct nature, but also the intertwined aims, of Article 29 and Article 7(1)(c) of the Judgments Convention. Both have to be considered as part of an integrated approach defining the conditions for the establishment of trust among Contracting Parties to the Judgments Convention.

C.  The Multitiered Value of Customising the Geographical Scope of Application of the Convention: From Plurilateral Judicial Cooperation to the Pursuance of a Global Judicial Union Pursuant to Article 1(2), the Judgments Convention is premised on reciprocity and, notably, it applies to the recognition and enforcement in one Contracting State of a judgment given by a court of another Contracting State.47 The Convention also has universal character, as provided at Article 24(1) and (3) pursuant to which the Convention is open for signature and accession to all States, including those that are not Members of the Hague Conference on Private International Law, nor participated in the Diplomatic Session adopting it. While, from a general standpoint, universality contributes to a treaty’s overall objective of pursuing and promoting harmonisation or unification in the area of the law that it is intended to regulate, the goal of facilitating adherence to the treaty may nevertheless suggest, in certain cases, moderating such otherwise unmitigated openness. With specific reference to the Judgments

46 This was the case, eg, in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7, [2012] 1 WLR 1804; Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 (HL) 976; Blanco v Banco Industrial de Venezuela, 997 F 2d 974 (2nd Cir 1993); Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992; and Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687. 47 For the purposes of this chapter and where appropriate, the expression ‘State’ refers to both States and REIOs.

Article 29 of the HCCH Judgments Convention  99 Convention, States might adopt a pragmatically hesitant, and even reluctant, approach if facing the perspective of being bound under the Convention to recognise and enforce judgments ­originating from all the other States, including from those States that they deem inclined to producing, systematically, ‘biased, unprincipled or defective’ judgments.48 A mechanism, such as the one at Article 29, which permits States to customise the geographical scope of application of the Convention by delaying or avoiding the establishment of treaty relations with other Parties to the Convention, responds precisely to this concern.49 In fact, assigning a role to the requested State, and protecting its autonomy, in determining which States’ judgments the requested State is bound to recognise and enforce under the Convention visibly increases the prospect of adherence to the Convention. While, prima facie, it may appear that such delays and avoidance and the mechanism on which they are premised encroach, to some extent, on the universality of the Convention, they actually foster participation in the treaty. And while the States using the mechanism might not ultimately have treaty relations with all Contracting Parties, they would nevertheless have relations with many other States, thereby creating an obligation to recognise and enforce judgments coming from those States. Overall, although such a mechanism might seem to not maximise the number of treaty relationships, it may actually prove to promote the participation of more States in the Convention itself. By relying on a system that is premised on tacit (as opposed to explicit) acceptance, Article 29 facilitates participation in the Convention since it only requires action on the part of those States that wish to limit the geographical scope of their relations under the Convention. Quite reasonably and consistently with the objective of engaging a greater number of States, notifications made in accordance with Article 29 do not need to be motivated, so as to increase the chances that States make use of this mechanism instead of relinquishing altogether the prospect of adhering to the Convention.50 The significance of Article 29 is apparent, especially in the light of the sensitive matter regulated by the Convention: rather than compromise on the compulsory nature of the obligations set forth under the Convention, or attempt to pre-emptively establish general standards to be met by aspiring Contracting Parties, or support greater reliance on the public policy exception under Article 7(1)(c), the negotiators crafted the Article 29 mechanism to strike a balance between the Convention’s objective of universality and each State’s need to preserve a degree of autonomy and control over the relations it establishes in accordance with the Convention.51 In particular, Article 29 frames the Convention as an instrument for multilateral but also plurilateral52 judicial cooperation: notably, it creates the possibility for Contracting Parties to 48 DP Stewart, ‘The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’ (2019) 113 American Journal of International Law 772, 780. 49 Additional elements of flexibility – either of procedural nature or ratione materiae – are introduced by the declarations available under the Convention. Notably, pursuant to the Convention, a Contracting Party may declare that (i) it will not apply or it will limit the scope of the provision that prohibits the imposition of security, bond or deposit, however described (Art 14); (ii) it will not recognise foreign judgments delivered over a dispute in which, with the exception of the location of the court of origin, all the other elements were connected only with the requested State (Art 17); (iii) it will exclude the Convention’s application to ‘a specific matter’ to which it ‘has a strong interest in not applying’ the Convention (Art 18); and (iv) it will not apply the Convention with respect to judgments pertaining to a State (Art 19). 50 Mariottini (n 22) 368. 51 Stewart (n 48) 780–81. cf also, above, section II.B, and Report of Meeting No 13 of 26 June 2019 and Report of Meeting No 15 of 28 June 2019, in Proceedings of the Twenty-Second Diplomatic Session (forthcoming). 52 A Pellet, ‘Le droit et la pratique concernant les réserves aux traités. Rapport préliminaire’ in Annuaire de la Commission du Droit International, 1995, doc A/CN.4/470, 144: ‘distinction entre traités “plurilatéraux” – traités multilatéraux n’ayant pas un caractère general’; at 42: ‘les traités plurilatéraux comme ceux “conclus entre un nombre limité d’Etats à des fins intéressant spécialement ces États”’ [which freely translates as: ‘plurilateral treaties as those “concluded between a limited number of States for purposes of special interest to those States”’].

100  João Ribeiro-Bidaoui and Cristina M Mariottini establish clusters of cooperation in the area of mutual recognition and enforcement of foreign judgments in civil or commercial matters, and beyond. In fact, while instruments governing the establishment of treaty relations are – by definition – a means to further regulate cooperation between Contracting Parties, the provision at Article 29 may be deliberately and consciously used by Contracting and prospective Contracting Parties as a means to establish a plurilateral cooperation in this area of the law. It follows that the impact of Article 29 may go beyond that dictated by objectives directly pursued by the Convention. In fact, the system established under Article 29 creates the premises for taking one step forward from the simple, unilateral shaping and customising of the territorial scope of application of the Convention. On the one hand, the plurilateral cooperation that is made available with this mechanism may also be expanded (or exported) to contiguous areas of the law (eg, the Jurisdiction Project and parallel litigation), hence creating real sets and sub-sets of advanced cooperation and unlocking agreement in other critical areas of international cooperation. On the other hand, this system may amount to an incentive to join and meet certain standards with a view to increasing the chances of becoming part of the plurilateral cooperation established under the Convention. Notably, the ‘risk’ of facing a notification under Article 29 should be enough to discourage certain States from seeking adhesion to the Convention, avoiding the related political fallout, while also providing an incentive for States perceived as fraught with a systemic lack of due process to correct and improve, loudly and clearly, their domestic judicial systems. In that sense, the Convention and its Article 29 may be seen as a prompter for the progressive improvement of judicial integrity around the world, an instrument of judicial rapprochement.53 By fostering the alignment of legal systems, the mechanism set out at Article 29 contributes to the pursuit of an advanced international cooperation characterised by coherent and more virtuous universal spaces of judicial cooperation and integration, for the benefit and the progress of international legal relations.54 As such, it provides the key legal infrastructure for a progressively global judicial union. Should the mechanism in Article 29 be implemented in future international instruments with a degree of normalcy (as opposed to its current character of novelty and exception), it is likely to amount to a catalyst of virtuous change which certainly transcends the simple objectives of the instrument it belongs to, to actively affect the relations that a State is apt to establish within the international community. This section attempted to make the case for the advantages and related multitiered value of customising the geographical scope of application of the Convention, which, more than setting up a plurilateral judicial cooperation, may well be setting up the legal infrastructure for the pursuance of a global judicial union.

53 Jenard (n 4) 388. 54 Pellet (n 52) 139: ‘Le deuxième principe, par contre, est qu’il est souhaitable que les conventions multilaterals reçoivent une application aussi large que possible. Le fait même qu’elles sont multilaterals permet de supposer que les sujets don’t ells traitent intéressent la communauté internationale, c’est-à dire qu’ils sont non seulement susceptibles d’être réglementés sur le plan international, mais qu’ils appellant également une réforme ou une modification du droit existant. Pourqu’une convention multilatérale soit utile, il faut qu’elle reçoive une application aussi large que possible’ [which freely translates as: ‘The second principle, on the other hand, establishes the desirability that multilateral conventions be given as wide an application as possible. The very fact that they are multilateral implies that the subjects they deal with are of interest to the international community, ie, that they are not only susceptible to international regulation, but also call for reform or modification of existing law. For a multilateral convention to be useful, it must be given the widest possible application’].

Article 29 of the HCCH Judgments Convention  101

IV. Conclusions By setting forth a system whereby Contracting Parties may customise the territorial scope of application of the Judgments Convention, Article 29 introduces an element of flexibility intended to encourage an extensive adherence to the Convention and, accordingly, promote cross-border access to justice, while overcoming any discrimination between Contracting Parties. Notably, with its innovative but also established characters, the mechanism at Article 29 permits delaying or avoiding the establishment of treaty relations with other Parties to the Convention: in doing so, it fosters a balanced and reasonable solution to mitigate the concerns that may arise from the expanded membership of the Hague Conference and the universality of the Convention in an area of the law, such as the one on the recognition and enforcement of foreign judgments in civil or commercial matters, that has proven contentious in the context of global treaties. In this context, rather than, to some extent, impinging on the universality of the Convention, such delays and avoidance actually foster participation in the Convention: while, as a result of an Article 29 notification, treaty relations might not be established with all Contracting Parties, they would nevertheless be established with several States, thereby creating an obligation to recognise and enforce judgments coming from those States. Accordingly, rather than as a means to contain the number of treaty relationships established under the Convention, the mechanism set out at Article 29 should actually be read as promoting the participation of more States in the Convention itself. And although formulating an objection in accordance with Article 29 requires a clarity of vision and prompt reactivity on the part of the notifying State which may not always prove easy to satisfy in practice, the reading of Article 29 and Article 7(1)(c) of the Judgments Convention as part of an integrated approach shapes a system that enables States to successfully establish plurilateral treaty relations by balancing their reciprocal trust and autonomy when joining the Convention. Remarkably, the significance of the system laid down at Article 29 is not limited to the regulation of the relations established under the Convention. By creating the premises for a system that may be relied on to create clusters of advanced cooperation and unlock agreement in other critical areas of international cooperation, the mechanism set forth at Article 29 may, in fact, amount to an incentive to virtuous behaviours with a view to increasing the chances of becoming part of the plurilateral cooperation established under the Convention. Accordingly, such a system should be welcomed as potentially transcending the immediate objectives pursued with this single Convention and read as apt to provide the key legal infrastructure for a progressively global judicial union. By introducing a negative predictability as concerns the circulation of judgments from certain States, Article 29 becomes a powerful inducer and incentive for any State, subject to the Article 29 notification, to substantively and noticeably introduce measures which enhance the international trust in its judicial system.

102  João Ribeiro-Bidaoui and Cristina M Mariottini

Annex* 1.

‘Fully open’ Conventions and Protocols: unrestricted signature and unrestricted accession CONVENTION

1.

Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of Goods

PROVISION Article 25 (1) The Convention is open for signature by all States. (2) The Convention is subject to ratification, acceptance or approval by the signatory States. (3) The Convention is open for accession by all States which are not signatory States as from the date it is open for signature. (4) Instruments of ratification, acceptance, approval and accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

2.

Convention of Article 27 30 June 2005 on Choice (1) This Convention is open for signature by all States. of Court Agreements (2) This Convention is subject to ratification, acceptance or approval by the signatory States. (3) This Convention is open for accession by all States. (4) Instruments of ratification, acceptance, approval or accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

3.

Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary

Article 17 (1) This Convention shall be open for signature by all States. (2) This Convention is subject to ratification, acceptance or approval by the signatory States. (3) Any State which does not sign this Convention may accede to it at any time. (4) The instruments of ratification, acceptance, approval or accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, Depositary of this Convention.

4.

Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations

Article 23 Signature, ratification and accession (1) This Protocol is open for signature by all States. (2) This Protocol is subject to ratification, acceptance or approval by the signatory States. (3) This Protocol is open for accession by all States. (4) Instruments of ratification, acceptance, approval or accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Protocol.

* This Annex was drawn up with the kind support of the Permanent Bureau of the Hague Conference on Private International Law. The authors of this chapter wish to express their gratitude to the Permanent Bureau for the helpful assistance.

Article 29 of the HCCH Judgments Convention  103 2.

Conventions adopting restricted signature and unrestricted accession CONVENTION

5.

Convention of 15 June 1955 on the Law Applicable to International Sales of Goods

PROVISION Article 8 La présente Convention est ouverte à la signature des Etats représentés à la Septième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procèsverbal, dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 8 This Convention shall be open for signature by the States represented at the Seventh Session of the Hague Conference on Private International Law. It will be ratified and the instruments of ratification will be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be drawn up of all deposits of instruments of ratification, a copy of which shall be certified by diplomatic means to each of the signatory States. Article 11 Tout Etat, non représenté à la Septième session de la Conférence de La Haye de droit international privé, pourra adhérer à la présente Convention. L’Etat désirant adhérer notifiera son intention par un acte qui sera déposé auprès du Ministère des Affaires Etrangères des PaysBas. Celui-ci en enverra, par la voie diplomatique, une copie, certifiée conforme, à chacun des Etats contractants. La Convention entrera en vigueur, pour l’Etat adhérant, le soixantième jour après la date du dépôt de l’acte d’adhésion. Il est entendu que le dépôt de l’acte d’adhésion ne pourra avoir lieu qu’après l’entrée en vigueur de la présente Convention en vertu de l’article 9, alinéa premier. Article 11 Any State not represented at the seventh session of The Hague Conference on Private International Law may accede to this Convention. A State desiring to accede shall give notice of its intention by an instrument which shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The latter shall transmit through the diplomatic channel a certified copy thereof to each of the Contracting States. The Convention shall enter into force as regards the acceding State on the sixtieth day following the date of deposit of the instrument of accession. It is understood that the deposit of the instrument of accession may not take place until after the entry into force of the Convention pursuant to Article 9, paragraph 1.

104  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION 6.

Convention of 15 June 1955 Relating to the Settlement of the Conflicts Between the Law of Nationality and the Law of Domicile

PROVISION Article 9 La présente Convention est ouverte à la signature des Etats représentés à la Septième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procès-verbal dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 9 This Convention shall be open for signature by the States represented at the Seventh Session of the Hague Conference on Private International Law. It will be ratified and the instruments of ratification will be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be drawn up of all deposit of instruments of ratification, a copy of which shall be certified and shall be transmitted through the diplomatic channel to each of the signatory States. Article 12 Tout Etat, non représenté à la Septième session de la Conférence de La Haye de droit international privé, pourra adhérer à la présente Convention. L’Etat, désirant adhérer, notifiera son intention par un acte qui sera déposé auprès du Ministère des Affaires Etrangères des Pays-Bas. Celui-ci en enverra, par la voie diplomatique, une copie, certifiée conforme, à chacun des Etats contractants. La Convention entrera en vigueur pour l’Etat adhérant le soixantième jour après la date du dépôt de l’acte d’adhésion. Il est entendu que le dépôt de l’acte d’adhésion ne pourra avoir lieu qu’après l’entrée en vigueur de la présente Convention en vertu de l’article 10, alinéa premier. Article 12 Any State not represented at the Seventh Session of the Hague Conference on Private International Law may accede to this Convention. The State, wishing to join, shall notify its intention by an act which shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The latter shall send, through the diplomatic channel, a certified copy to each of the Contracting States. The Convention will enter into force for the acceding State on the sixtieth day after the date of deposit of the Act of Accession. It is understood that the deposit of the Act of Accession may take place only after the entry into force of this Convention by virtue of Article 10, paragraph 1.

Article 29 of the HCCH Judgments Convention  105 CONVENTION 7.

Convention of 15 April 1958 on the Law Governing Transfer of Title in International Sales of Goods

PROVISION Article 11 La présente Convention est ouverte à la signature des Etats représentés à la Huitième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procès-verbal, dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 11 This Convention shall be open for signature by the States represented at the Eighth Session of the Hague Conference on Private International Law. It will be ratified and the instruments of ratification will be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be drawn up of all deposits of instruments of ratification, a copy of which shall be certified by diplomatic means to each of the signatory States. Article 14 Tout Etat non représenté à la Huitième session de la Conférence de La Haye de droit international privé, pourra adhérer à la présente Convention. L’Etat désirant adhérer notifiera son intention par un acte qui sera déposé auprès du Ministère des Affaires Etrangères des Pays-Bas. Celui-ci en enverra, par la voie diplomatique, une copie, certifiée conforme, à chacun des Etats contractants. La Convention entrera en vigueur, pour l’Etat adhérant, le soixantième jour après la date du dépôt de l’acte d’adhésion. Il est entendu que le dépôt de l’acte d’adhésion ne pourra avoir lieu qu’après l’entrée en vigueur de la présente Convention en vertu de l’article 12, alinéa premier. Article 14 Any State not represented at the Eighth Session of the Hague Conference on Private International Law may accede to this Convention. The State wishing to accede shall notify its intention by an act which shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The latter shall send, through the diplomatic channel, a certified copy to each of the Contracting States. The Convention shall enter into force for the acceding State on the sixtieth day after the date of deposit of the Act of Accession. It is understood that the deposit of the Act of Accession may take place only after the entry into force of this Convention by virtue of Article 12, paragraph 1.

106  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION 8.

Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions

PROVISION Article 14 The present Convention shall be open for signature by the States represented at the Ninth Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 16 Any State not represented at the Ninth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 15. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession.

9.

Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes

Article 22 The Convention is open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Thirteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 23 Any other State may accede to the Convention. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

10.

Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages

Article 24 The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Thirteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 25 Any other State may accede to the Convention. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 29 of the HCCH Judgments Convention  107 CONVENTION 11.

Convention of 14 March 1978 on the Law Applicable to Agency

PROVISION Article 23 The Convention is open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Thirteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Article 24 Any other State may accede to the Convention. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

12.

Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons

Article 25 (1) The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Sixteenth Session. (2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention. Article 26 (1) Any other State may accede to the Convention after it has entered into force in accordance with Article 28, paragraph 1. (2) The instrument of accession shall be deposited with the depositary.

3.

Conventions adopting restricted signature and restricted accession CONVENTION

13.

Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations

PROVISION Article 20 This Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Twelfth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 21 Any State which has become a Member of the Hague Conference on Private International Law after the date of its Twelfth Session, or which is a Member of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of Justice may accede to this Convention after it has entered into force in accordance with the first paragraph of Article 25. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

108  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION 14.

Convention of 2 October 1973 on the Law Applicable to Products Liability

PROVISION Article 17 This Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Twelfth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 18 Any State which has become a Member of the Hague Conference on Private International Law after the date of its Twelfth Session, or which is a Member of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of Justice may accede to this Convention after it has entered into force in accordance with Article 20. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

4. Conventions adopting restricted signature, and unrestricted accession subject to ‘tacit acceptance’ CONVENTION 15.

Convention of 1 June 1956 Concerning the Recognition of the Legal Personality of Foreign Companies, Associations and Institutions

PROVISION Article 10 La présente Convention est ouverte à la signature des Etats représentés à la Septième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procès-verbal, dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 10 This Convention shall be open for signature by the States represented at the Seventh Session of the Hague Conference on Private International Law. It will be ratified and the instruments of ratification will be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be drawn up of all deposits of instruments of ratification, a copy of which shall be certified by diplomatic means to each of the signatory States. Article 13 Tout Etat, non représenté à la Septième session de la Conférence de La Haye de droit international privé, pourra adhérer à la présente Convention. Les instruments d’adhésion seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Celui-ci en enverra, par la voie diplomatique, une copie, certifiée conforme, à chacun des Etats contractants.

Article 29 of the HCCH Judgments Convention  109 CONVENTION

PROVISION L’adhésion n’aura effet que dans les rapports entre l’Etat adhérant et les Etats qui n’élèveront pas d’objection dans les six mois à partir de cette communication. Il est entendu que le dépôt de l’acte d’adhésion ne pourra avoir lieu qu’après l’entrée en vigueur de la présente Convention en vertu de l’article 11, alinéa premier. Article 13 Any State not represented at the Seventh Session of the Hague Conference on Private International Law may accede to this Convention. The instruments of accession will be deposited with the Ministry of Foreign Affairs of the Netherlands. The latter shall send, through the diplomatic channel, a certified copy to each of the Contracting States. Accession shall have effect only in the relations between the acceding State and the States which will not object within six months from that communication. It is understood that the deposit of the Act of Accession may take place only after the entry into force of this Convention by virtue of Article 11, paragraph 1.

16.

Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents

Article 10 The present Convention shall be open for signature by the States represented at the Ninth Session of the Hague Conference on Private International Law and Iceland, Ireland, Liechtenstein and Turkey. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 12 Any State not referred to in Article 10 may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 11. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph d) of Article 15. Any such objection shall be notified to the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force as between the acceding State and the States which have raised no objection to its accession on the sixtieth day after the expiry of the period of six months mentioned in the preceding paragraph.

110  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION 17.

Convention of 25 October 1980 on International Access to Justice

PROVISION Article 31 The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session and by non-Member States which were invited to participate in its preparation. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Article 32 Any other State may accede to the Convention. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the twelve months after the receipt of the notification referred to in sub-paragraph 2 of Article 36. Such an objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

18.

Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition

Article 27 The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fifteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Article 28 Any other State may accede to the Convention after it has entered into force in accordance with Article 30, paragraph 1. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. The accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the twelve months after the receipt of the notification referred to in Article 32. Such an objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 29 of the HCCH Judgments Convention  111 CONVENTION 19.

Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption

PROVISION Article 43 (1) The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Seventeenth Session and by the other States which participated in that Session. (2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention. Article 44 (1) Any other State may accede to the Convention after it has entered into force in accordance with Article 46, paragraph 1. (2) The instrument of accession shall be deposited with the depositary. (3) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b) of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

20.

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

Article 57 (1) The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Eighteenth Session. (2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention. Article 58 (1) Any other State may accede to the Convention after it has entered into force in accordance with Article 61, paragraph 1. (2) The instrument of accession shall be deposited with the depositary. (3) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b of Article 63. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

112  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION 21.

Convention of 13 January 2000 on the International Protection of Adults

PROVISION Article 53 (1) The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law on 2 October 1999. (2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention. Article 54 (1) Any other State may accede to the Convention after it has entered into force in accordance with Article 57, paragraph 1. (2) The instrument of accession shall be deposited with the depositary. (3) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b) of Article 59. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

22.

Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance

Article 58 (1) The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Twenty-First Session and by the other States which participated in that Session. (2) It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention. (3) Any other State or Regional Economic Integration Organisation may accede to the Convention after it has entered into force in accordance with Article 60(1). (4) The instrument of accession shall be deposited with the depositary. (5) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the 12 months after the date of the notification referred to in Article 65. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

Article 29 of the HCCH Judgments Convention  113 5.

Conventions adopting restricted signature, and restricted accession subject to ‘tacit acceptance’ CONVENTION

23.

Convention of 2 October 1973 Concerning the International Administration of the Estates of Deceased Persons

PROVISION Article 41 This Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Twelfth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 42 Any State which has become a Member of the Hague Conference on Private International Law after the date of its Twelfth Session, or which is a Member of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of Justice may accede to this Convention after it has entered into force in accordance with Article 44. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the twelve months after the receipt of the notification referred to in sub-paragraph 3 of Article 46. The objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Ministry of Foreign Affairs of the Netherlands.

24.

Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations

Article 30 This Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Twelfth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 31 Any State which has become a Member of the Hague Conference on Private International Law after the date of its Twelfth Session, or which is a Member of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of Justice may accede to this Convention after it has entered into force in accordance with the first paragraph of Article 35. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

114  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION

PROVISION Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the twelve months after the receipt of the notification referred to in sub-paragraph 3 of Article 37. Such an objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Ministry of Foreign Affairs of the Netherlands.

6. Conventions adopting restricted signature, and unrestricted accession subject to ‘explicit acceptance’ CONVENTION 25.

Convention of 15 April 1958 on the Jurisdiction of the Selected Forum in the Case of International Sales of Goods

PROVISION Article 11 La présente Convention est ouverte à la signature des Etats représentés à la Huitième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procès-verbal, dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 11 This Convention shall be open for signature by the States represented at the Eighth Session of the Hague Conference on Private International Law. It will be ratified and the instruments of ratification will be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be drawn up of all deposits of instruments of ratification, a copy of which shall be certified by diplomatic means to each of the signatory States. Article 13 Tout Etat, non représenté à la Huitième session de la Conférence de La Haye de droit international privé, pourra adhérer à la présente Convention. L’Etat désirant adhérer notifiera son intention par un acte qui sera déposé auprès du Ministère des Affaires Etrangères des Pays-Bas. Celui-ci en enverra, par la voie diplomatique, une copie, certifiée conforme, à chacun des Etats contractants. La Convention entrera en vigueur, pour l’Etat adhérant, le soixantième jour après la date du dépôt de l’acte d’adhésion. L’adhésion n’aura d’effet que dans les rapports entre l’Etat adhérant et les Etats contractants qui auront déclaré accepter cette adhésion. Cette déclaration sera déposée auprès du Ministère des Affaires Etrangères des Pays-Bas. Il est entendu que le dépôt de l’acte d’adhésion ne pourra avoir lieu qu’après l’entrée en vigueur de la présente Convention en vertu de l’article 12.

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PROVISION Article 13 Any State not represented at the Eighth Session of the Hague Conference on Private International Law may accede to this Convention. The State wishing to accede shall notify its intention by an act which shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The latter shall send, through the diplomatic channel, a certified copy to each of the Contracting States. The Convention shall enter into force for the acceding State on the sixtieth day after the date of deposit of the Act of Accession. Accession shall have effect only in the relations between the acceding State and the Contracting States which have declared that they accept this accession. This declaration will be filed with the Ministry of Foreign Affairs of the Netherlands. It is understood that the deposit of the Act of Accession may take place only after the entry into force of this Convention by virtue of Article 12.

26.

Convention of 15 April 1958 Concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Towards Children

Article 15 La présente Convention est ouverte à la signature des Etats représentés à la Huitième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procès-verbal dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 15 This Convention shall be open for signature by the States represented at the Eighth Session of the Hague Conference on Private International Law. It will be ratified and the instruments of ratification will be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be drawn up of all deposit of instruments of ratification, a copy of which shall be certified and shall be transmitted through the diplomatic channel to each of the signatory States. Article 17 Tout Etat, non représenté à la Huitième session de la Conférence de La Haye de droit international privé, pourra adhérer à la présente Convention. L’Etat désirant adhérer notifiera son intention par un acte qui sera déposé auprès du Ministère des Affaires Etrangères des Pays-Bas. Celui-ci en enverra, par la voie diplomatique, une copie, certifiée conforme, à chacun des Etats contractants. La Convention entrera en vigueur, entre l’Etat adhérant et l’Etat ayant déclaré accepter cette adhésion, le soixantième jour après la date du dépôt de l’acte d’adhésion.

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PROVISION L’adhésion n’aura d’effet que dans les rapports entre l’Etat adhérant et les Etats contractants qui auront déclaré accepter cette adhésion. Cette déclaration sera déposée auprès du Ministère des Affaires Etrangères des Pays-Bas; celui-ci en enverra, par la voie diplomatique, une copie, certifiée conforme, à chacun des Etats contractants. Il est entendu que le dépôt de l’acte d’adhésion ne pourra avoir lieu qu’après l’entrée en vigueur de la présente Convention en vertu de l’article 16. Article 17 Any State not represented at the Eighth Session of the Hague Conference on Private International Law may accede to this Convention. The State wishing to accede shall notify its intention by an act which shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The latter shall send, through the diplomatic channel, a certified copy to each of the Contracting States. The Convention will enter into force, between the acceding State and the State having declared to accept this accession, on the sixtieth day after the date of the deposit of the Act of Accession. Accession shall have effect only in the relations between the acceding State and the Contracting States which have declared that they accept this accession. This declaration will be deposited with the Ministry of Foreign Affairs of the Netherlands; the latter shall send, through the diplomatic channel, a certified copy to each of the Contracting States. It is understood that the deposit of the Act of Accession may take place only after the entry into force of this Convention by virtue of Article 16.

27.

Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants

Article 19 La présente Convention est ouverte à la signature des Etats représentés à la Neuvième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Article 19 The present Convention is open to the signature of the States represented at the Ninth Session of the Hague Conference on Private International Law. It shall be ratified and the instruments of ratification deposited with the Ministry of Foreign Affairs of the Netherlands. Article 20 La présente Convention entrera en vigueur le soixantième jour après le dépôt du troisième instrument de ratification prévu par l’article 19, alinéa 2. La Convention entrera en vigueur, pour chaque Etat signataire ratifiant postérieurement, le soixantième jour après le dépôt de son instrument de ratification.

Article 29 of the HCCH Judgments Convention  117 CONVENTION

PROVISION Article 20 The present Convention shall enter into effect the sixtieth day after the deposit of the third instrument of ratification contemplated in Article 19, paragraph 2. As respects each signatory State subsequently ratifying the Convention, it shall enter into effect on the sixtieth day from the date of the deposit of its instrument of ratification. Article 21 Tout Etat non représenté à la Neuvième session de la Conférence de La Haye de droit international privé pourra adhérer à la présente Convention après son entrée en vigueur en vertu de l’article 20, alinéa premier. L’instrument d’adhésion sera déposé auprès du Ministère des Affaires Etrangères des Pays-Bas. L’adhésion n’aura d’effet que dans les rapports entre l’Etat adhérant et les Etats contractants qui auront déclaré accepter cette adhésion. L’acceptation sera notifiée au Ministère des Affaires Etrangères des Pays-Bas. La Convention entrera en vigueur, entre l’Etat adhérant et l’Etat ayant déclaré accepter cette adhésion, le soixantième jour après la notification mentionnée à l’alinéa précédent. Article 21 Any State not represented at the Ninth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into effect in virtue of Article 20, paragraph 1. The instrument of accede shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The accession shall have effect only in the relations between the acceding State and Contracting States which declare that they accept this accession. The acceptance shall be notified to the Ministry of Foreign Affairs of the Netherlands. Between the accessing State and the State which has declared that it accepts the accession the Convention shall enter into effect the sixtieth day after the notification mentioned in the preceding paragraph.

28.

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Article 37 The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Article 38 Any other State may accede to the Convention. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

118  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION

PROVISION The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.

7. Conventions adopting restricted signature, and restricted accession subject to ‘explicit acceptance’ CONVENTION 29.

Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations

PROVISION Article 26 The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 28 Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a Member of this Conference or of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of Justice may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 27. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration shall be deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the sixtieth day after the deposit of the declaration of acceptance.

Article 29 of the HCCH Judgments Convention  119 CONVENTION 30.

Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters

PROVISION Article 37 The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 39 Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a Member of this Conference or of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of Justice may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 38. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the sixtieth day after the deposit of the declaration of acceptance.

31.

Convention of 4 May 1971 on the Law Applicable to Traffic Accidents

Article 16 The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 18 Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a Member of this Conference or of the United Nations or of a specialised agency of that Organisation, or a Party to the Statute of the International Court of Justice may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 17. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession.

120  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION

PROVISION The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration shall be deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State having declared to accept the accession on the sixtieth day after the deposit of the declaration of acceptance.

8.

Conventions adopting restricted signature, and unrestricted accession subject to ‘veto’ CONVENTION

32.

Convention of 1 March 1954 on Civil Procedure

PROVISION Article 27 La présente Convention est ouverte à la signature des Etats représentés à la Septième session de la Conférence de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procès-verbal, dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 27 This Convention shall be open for signature by the States represented at the Seventh Session of the Conference on Private International Law. It shall be ratified and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be made of every deposit of instruments of ratification, and a certified copy of that record shall be sent through diplomatic channels to each of the signatory States. Article 31 Tout Etat, non représenté à la Septième session de la Conférence, est admis à adhérer à la présente Convention, à moins qu’un Etat ou plusieurs Etats ayant ratifié la Convention ne s’y opposent, dans un délai de six mois à dater de la communication faite par le Gouvernement néerlandais, de cette adhésion. L’adhésion se fera de la manière prévue par l’article 27, alinéa 2. Il est entendu que les adhésions ne pourront avoir lieu qu’après l’entrée en vigueur de la présente Convention, en vertu de l’article 28, alinéa premier. Article 31 Any State not represented at the Seventh Session of the Conference may accede to the present Convention, unless a State or several States which have ratified the Convention object, within a period of six months from the date of the notification by the Netherlands Government of that accession. Accession shall be by the method indicated in the second paragraph of Article 27.

Article 29 of the HCCH Judgments Convention  121 CONVENTION

PROVISION It is understood that the accessions shall not be able to take place until after the entry into force of the present Convention, by virtue of the first paragraph of Article 28.

33.

Convention of 24 October 1956 on the Law Applicable to Maintenance Obligations Towards Children

Article 7 La présente Convention est ouverte à la signature des Etats représentés à la Huitième session de la Conférence de La Haye de droit international privé. Elle sera ratifiée et les instruments de ratification seront déposés auprès du Ministère des Affaires Etrangères des Pays-Bas. Il sera dressé de tout dépôt d’instruments de ratification un procès-verbal, dont une copie, certifiée conforme, sera remise, par la voie diplomatique, à chacun des Etats signataires. Article 7 This Convention shall be open for signature by the States represented at the Eighth Session of the Hague Conference on Private International Law. It will be ratified and the instruments of ratification will be deposited with the Ministry of Foreign Affairs of the Netherlands. A record shall be drawn up of all deposits of instruments of ratification, a copy of which shall be certified by diplomatic means to each of the signatory States. Article 10 Tout Etat, non représenté à la Huitième session de la Conférence est admis à adhérer à la présente Convention, à moins qu’un Etat ou plusieurs Etats ayant ratifié la Convention ne s’y opposent, dans un délai de six mois, à dater de la communication faite par le Gouvernement néerlandais de cette adhésion. L’adhésion se fera de la manière prévue par l’article 7, alinéa 2. Il est entendu que les adhésions ne pourront avoir lieu qu’après l’entrée en vigueur de la présente Convention, en vertu de l’article 8, alinéa premier. Article 10 Any State not represented at the Eighth Session of the Conference may accede to this Convention, unless one or more States which have ratified the Convention object, within six months, from the communication made by the Netherlands Government of this accession. Membership shall be in the manner provided for in Article 7(2). It is understood that accessions can only take place after the entry into force of this Convention, pursuant to Article 8, paragraph 1.

34.

Convention of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions

Article 18 The present Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

122  João Ribeiro-Bidaoui and Cristina M Mariottini CONVENTION

PROVISION Article 20 Any State not represented at the Tenth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 19. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for such a State in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession. In the absence of any such objection, the Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph.

35.

Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

Article 26 The present Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 28 Any State not represented at the Tenth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 27. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for such a State in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession. In the absence of any such objection, the Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph.

36.

Convention of 25 November 1965 on the Choice of Court

Article 16 The present Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law. It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 18 Any State not represented at the Tenth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 17. The instruments of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

Article 29 of the HCCH Judgments Convention  123 CONVENTION

PROVISION The Convention shall enter into force for such a State in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession. In the absence of any such objection, the Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph.

9.

Conventions adopting the ‘Supplementary Agreements’ approach CONVENTION

37.

Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters

PROVISION Article 21 Decisions rendered in a Contracting State shall not be recognised or enforced in another Contracting State in accordance with the provisions of the preceding Articles unless the two States, being Parties to this Convention, have concluded a Supplementary Agreement to this effect. Article 27 This Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law and Cyprus, Iceland and Malta. It shall be ratified and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 29 Any State not falling within the provisions of the first paragraph of Article 27 may accede to this Convention after it has entered into force in accordance with the first paragraph of Article 28. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. This Convention shall enter into force for such a State in the absence of any objection from a State which has ratified this Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession. In the absence of any such objection, this Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph.

124

6 The Hague System for Choice of Court Agreements: Relationship of the HCCH 2019 Judgments Convention to the HCCH 2005 Convention on Choice of Court Agreements PAUL BEAUMONT*

I. Introduction The Hague Conference on Private International Law (HCCH) focused its attention on regulating choice of court agreements after the failure of the broader Judgments Convention Project to reach consensus on a general mixed Convention on civil and commercial matters in 2001. The intense discussions between 2002 and 2005 resulted in the HCCH 2005 Choice of Court Agreements Convention 2005 (the 2005 Convention).1 In the end the core of that Convention only concerns ‘exclusive’ choice of court agreements. There is an optional system permitting recognition and enforcement of judgments emanating from a court that could have exercised its jurisdiction based on a ‘non-exclusive’ choice of court agreement. However, no Contracting Party to the 2005 Convention has opted into this system thus far and it should be regarded as a dead letter now that the HCCH 2019 Judgments Convention (the 2019 Convention) has been concluded. The 2019 Convention provides a comprehensive system for recognition and enforcement of judgments in civil or commercial matters apart from where the only relevant jurisdictional basis is an exclusive choice of court agreement in favour of the court of origin. The 2019 Convention provides for the recognition and enforcement of judgments which could have been based on any type of choice of court agreement apart from an ‘exclusive’ choice of court agreement within the meaning of the 2005 Convention. The 2005 Convention provides a comprehensive system for dealing with ‘exclusive’ choice of court agreements: a direct rule of jurisdiction in favour of the chosen court which that court cannot refuse to exercise, a rule which in principle requires other courts to give

* FRSE, Professor of Private International Law, University of Stirling, Scotland, UK. Email: [email protected]. Paul was on the drafting committee at the HCCH for both Conventions. He was a member of the UK delegation for all the negotiations on the 2005 Convention and a member of the EU delegation for all the negotiations on the 2019 Convention. His views in this chapter are personal and should not be attributed to the UK or the EU. Thanks to David Goddard and to the editors for their helpful views on earlier versions of this chapter. 1 See P Beaumont, ‘Hague Choice of Court Agreements Convention 2005: Background, Negotiations, Analysis and Current Status’ (2009) 5 Journal of Private International Law 125.

126  Paul Beaumont way to the chosen court, and a system for recognising and enforcing judgments coming from the chosen court. However, that comprehensive system is supplemented by one new rule in the 2019 Convention: the power given to the court where recognition and enforcement of a judgment is sought to refuse to recognise a judgment if it was granted ‘contrary’ to a choice of court agreement. Therefore, if a court grants a judgment which is not the court exclusively chosen in a choice of court agreement under the 2005 Convention, the 2019 Convention empowers the court where recognition and enforcement of that judgment is sought to refuse recognition and enforcement (even though the court granting the judgment had a satisfactory basis of jurisdiction under the 2019 Convention). The HCCH system for choice of court agreements works properly only if States become Parties to both the 2005 and 2019 Conventions.

II.  Exclusive Choice of Court Agreements versus All Other Types of Choice of Court Agreements For the purpose of the HCCH system, ‘exclusive’ choice of court agreement has a clear definition. It can be found within Article 3 of the 2005 Convention. It may be helpful to break down some of the key elements of an ‘exclusive’ choice of court agreement.

A.  Only a Court or Courts in One Contracting State can be Chosen To be an ‘exclusive’ choice of court agreement for the purpose of the HCCH system the agreement, between two or more parties, must specify a court or courts in only one Contracting State. So, the parties to the agreement can choose either the courts in Lyon or in Paris (both in France) and it is an exclusive choice of court agreement under the 2005 Convention but if they choose either the courts in Paris (France) or Berlin (Germany) it is not an exclusive choice of court agreement under that Convention. This is the case because the courts of two different States are chosen even though the European Union (EU) is a single Contracting Party to the 2005 Convention.2

B.  The Choice of the Parties will be Deemed to be Exclusive Unless Expressly Provided Otherwise One of the key features of the HCCH system is that it provides an autonomous rule on how to construe the meaning of choice of court agreements. To increase legal certainty the starting point is that where parties choose one or more courts in a single State bound by the 2005 Convention it will be interpreted as an exclusive choice unless the parties use express terms to make it clear that it is not an exclusive choice. So, if the parties say that ‘the courts in Lyon are to have jurisdiction to resolve disputes between them under their contract’ that will be deemed to be an ‘exclusive’ choice of the Lyon courts under the 2005 Convention. There is no requirement for the parties

2 See Art 30(2) of the 2005 Convention. The relevant part of which says: ‘any reference to a “Contracting State” or “State” in this Convention shall apply equally, where appropriate, to the Member States of the Organisation’. For this purpose, the EU is an ‘Organisation’. In full it is a ‘Regional Economic Integration Organisation’, see Art 30(1) of the 2005 Convention and Art 3 of the HCCH Statute.

Relationship with the HCCH Choice of Court Convention  127 to say that the Lyon court ‘alone’ or ‘exclusively’ has jurisdiction to resolve disputes under the contract. For the agreement not to be exclusive under the 2005 Convention the parties must ‘expressly’ so provide, for example, by saying that the courts of Lyon have ‘non-exclusive’ jurisdiction to resolve disputes under the contract or that the courts of Lyon have jurisdiction ‘but not to the exclusion of other courts in other States’ to resolve disputes under the contract. The HCCH 2019 Convention also maintains the same definition of ‘exclusive’ choice of court agreements in Article 5(1)(m) as is found in Article 3 of the 2005 Convention. The purpose of Article 5(1)(m) of the 2019 Convention is to provide an acceptable jurisdictional filter for any judgment coming from a court that could have exercised its jurisdiction based on a choice of court agreement that was not ‘exclusive’ under the terms of the HCCH 2005 Convention. Article 5(1)(m) does not repeat the ‘deeming’ provision in Article 3(b) of the 2005 Convention. However, the drafters of the 2019 Convention were aware of that deeming provision and expect it to be applied in interpreting what constitutes an ‘exclusive choice of court agreement’ for the purposes of the 2019 Convention. The Explanatory Report on the 2019 Convention says: The definition of a choice of court agreement in sub-paragraph (m) is drawn from the HCCH 2005 Choice of Court Convention, both with respect to the form of the agreement and to its nature as exclusive or non-exclusive, which should ensure consistency in interpretation across the two instruments.3

The Report goes on to note that the Convention ‘seeks to avoid overlap’ with the 2005 Convention4 and states that: Furthermore, the HCCH 2005 Choice of Court Convention contains a presumption that a choice of court agreement that designates the courts of one State, or one or more specific courts of one State, is deemed to be exclusive unless the parties expressly provided otherwise (Art 3(b)). In principle, the approach followed by the Convention seeks to avoid gaps between the two instruments.5

C.  Asymmetrical Choice of Court Agreements Fall within the 2019 Convention and Not the 2005 Convention It could be said that a choice of court agreement which commits one party to have to resolve any dispute under the contract to the courts of one Contracting State alone while the other party is free to go to courts in other States (an asymmetric choice of court agreement) is an ‘exclusive’ choice of court agreement under the HCCH system for the former party and not for the latter party. However, it is absolutely clear that this was not the intention of the drafters of either the 2005 or the 2019 Convention. The Explanatory Report on the 2019 Convention says: The agreement may instead be ‘asymmetrical’ (or ‘hybrid’), meaning that it is exclusive for one party but non-exclusive for another. Asymmetrical clauses are not considered exclusive under the Choice of Court Convention and therefore fall within the scope of the Convention.6

3 F Garcimartín and G Saumier, Explanatory Report on the HCCH Judgments Convention 2019 (HCCH 2020) para 214 (Explanatory Report on the 2019 Convention). 4 ibid, para 215. 5 ibid, para 216. 6 ibid, para 217.

128  Paul Beaumont The Explanatory Report on the 2005 Convention says: An asymmetric choice of court agreement (a choice of court agreement under which one party may bring proceedings exclusively in the designated court, but the other party may sue in other courts as well) is not regarded as exclusive for the purposes of the Convention.7

Indeed, the Report on the 2005 Convention goes on to explain that this was a decision of the ‘Diplomatic Session’.8 It must be remembered that the modern Explanatory Reports to HCCH Conventions (including both the 2005 and 2019 Convention Explanatory Reports) are not just the product of the authors of the reports but are in fact reviewed and effectively approved by the members of the HCCH and any other States involved in negotiating the relevant Convention. So, it can safely be said that all HCCH members and all States involved in negotiating the 2005 and 2019 Conventions are of the view that asymmetric choice of court agreements are not ‘exclusive’ choice of court agreements for the purpose of the two Conventions and therefore fall within the scope of the 2019 Convention. It would seem unwise for any court to disturb the uniform interpretation of the two Conventions on this point as it would not aid the ‘progressive unification of private international law’: the aim of the HCCH in Article 1 of its Statute and the ‘meta-purpose’ for all Hague Conventions.9 In this regard it is comforting that the English Court of Appeal unanimously,10 in obiter dicta, has disagreed with two first instance judges11 in England who had suggested that asymmetric jurisdiction agreements are exclusive choice of court agreements under the HCCH 2005 Convention. For the Court of Appeal Lord Justice Henderson said: I am prepared to proceed on the basis that the Hague 2005 Convention should probably be interpreted as not applying to asymmetric jurisdiction clauses, although I emphasise that it is unnecessary for us to decide that question, and I do not do so. A strong indication that this was the deliberate intention of the framers of the Convention is provided by the Explanatory Report of Professors Trevor Hartley and Masato Dogauchi, who in their discussion of asymmetric agreements said at paragraph 106: ‘It was agreed by the Diplomatic Session that, in order to be covered by the Convention, the agreement must be exclusive irrespective of the party bringing the proceedings. So agreements of the kind referred to in the previous paragraph [ie asymmetric agreements] are not exclusive choice of court agreements for the purposes of the Convention’. Further support for this conclusion may be found in the Diplomatic Minutes of the Meeting of Wednesday 15 June 2005, to which we were also referred by Mr Joseph. The minutes show that a proposal by the Swiss delegate to amend the proposed definition of an ‘exclusive choice of court agreement’ so as to make it clear that it included asymmetric jurisdiction agreements (by inserting the words ‘for some or all of the parties to the agreement’) was debated, but found no support. The amendment was then withdrawn.12

The Court of Appeal also very wisely concluded that the Brussels Ia Regulation does cover asymmetric jurisdiction clauses within the reversal of the normal lis pendens rule under

7 T Hartley and M Dogauchi, Explanatory Report on the 2005 Hague Choice of Court Convention (HCCH 2005) para 32 (Explanatory Report on the 2005 Convention). 8 ibid, para 106. 9 PR Beaumont, ‘Reflections on the Relevance of Public International Law to Private International Law Treaty Making’ (2009) 340 Hague Collected Courses 9–62, 24. 10 Etihad Airways PJSC v Flöther [2020] EWCA Civ 1707, [2022] QB 303. 11 Etihad Airways PJSC v Flöther [2019] EWHC 3107 (Comm); and Commerzbank AG v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm), [2017] 1 WLR 3497. 12 Etihad Airways PJSC v Flöther [2020] EWCA Civ 1707, [2022] QB 303, paras 85–86.

Relationship with the HCCH Choice of Court Convention  129 Article 31(2) and noted that its interpretation is independent from that of the Hague Choice of Court Convention.13

D.  The Agreement Must be Concluded or Documented in Writing or by any Other Means of Communication which is Accessible and Could Provide the Basis for Subsequent Reference The two HCCH Conventions have the same formal validity rule for choice of court agreements. It is an autonomous rule that leaves no scope for additional requirements to be laid down by national law. Thus, there can be no requirement that parties must sign the choice of court agreement, physically or electronically, or that their agreement must be witnessed. An oral agreement (eg, on the telephone) is acceptable if it is ‘documented’ in writing (eg, a transcript of the conversation based on a recording). An agreement entered into by an exchange of emails or through an interactive website also falls within the scope of a ‘means of communication which renders information accessible so as to be usable for subsequent reference’.14

E.  There Must in Substance be a Valid Choice of Court Agreement and this is Assessed Separately from the Validity of the Contract if the Agreement is Part of the Contract The 2005 Convention contains a clear applicable law rule for determining the substantive validity of an exclusive choice of court agreement. The rule has to be applied by the chosen court under Article 5 of the Convention, by any non-chosen court that is seised of an action to which the choice of court agreement applies under Article 6 of the Convention and by any court in which recognition or enforcement of a judgment given by the chosen court is called into question on the basis of an issue with the substantive validity of the choice of court agreement under Article 9(a). In all these cases it is the law of the State of the chosen court, including its private international law rules, which must be applied to determine if the choice of court agreement is substantively valid.15 It is the custom in the HCCH to refer to the ‘internal’ law of a State if the intention is to exclude that State’s private international law rules and therefore the deliberate exclusion of that word shows that the drafters clearly intended that the private international law rules of the law of the State of the chosen court can be referred to in determining which law governs the substantive validity of the choice of court agreement. A tricky issue that awaits judicial determination, hopefully in a uniform manner, is when is it appropriate for the private international law rules of the law of the State of the chosen court 13 ibid, paras 87–88, saying at para 88 that ‘the Hague 2005 Convention is an international agreement to be construed according to the principles of international law, and is not subject to the jurisprudence of the CJEU’. 14 See generally on this issue the Explanatory Report on the 2005 Convention (n 7) paras 110–14. It should be noted that the Explanatory Report on the 2019 Convention (n 3) in commenting on Art 5(1)(m) at para 218 says: ‘Oral agreements, therefore, do not benefit from this sub-paragraph’. However, what the reporters mean here is that an ‘oral agreement’ which is not documented in writing does not fall within a choice of court agreement for the purposes of the 2019 Convention. 15 See paras 125–26, 149 and 183 of the Explanatory Report on the 2005 Convention (n 7). It is particularly noteworthy that the court addressed cannot find the choice of court agreement substantively invalid if the chosen court has determined that the agreement is valid (Art 9(a)) and para 183 of the Explanatory Report on that provision says: ‘The purpose of this is to avoid conflicting rulings on the validity of the agreement among different Contracting States: they are all required to apply the law of the State of the chosen court, and they must respect any ruling on the point by that court’.

130  Paul Beaumont to lead to a law other than the internal law of that State to govern the substantive validity of the choice of court agreement? Given that one of the underlying purposes of the 2005 Convention, set out in the Preamble, is ensuring the ‘effectiveness of exclusive choice of court agreements’ the application of the private international law rules of the chosen court to the substantive validity of a choice of court agreement should, in principle, be departed from where it subverts that purpose. So, the internal law of the chosen court should be applied whenever it would find the choice of court agreement substantively valid even though under the law of the country indicated by the private international law rules of the country of the chosen court the choice of court agreement would be substantively invalid. One exception to this, to protect party autonomy, would be where the parties have expressly chosen a different law to govern the substantive validity of the choice of court agreement from the law of the place of the court they have chosen and the agreement is substantively invalid under the law of the country that they have chosen to govern that issue, even though it would be valid under the internal law of the chosen court.16 The 2005 Convention also contains the doctrine of ‘severability’ as set out in Article 3(d). This means that the choice of court agreement cannot be held invalid simply because the contract of which it is a part is invalid. The assessment of the validity of the choice of court agreement has to be done in relation to that agreement. So, under the severability doctrine a choice of court agreement will not be invalid where the reason for the invalidity of the contract is not relevant to the validity of the choice of court agreement, for example, because the invalidity of the contract is based on a misrepresentation that is not relevant to the choice of court agreement. Thus the autonomous nature of Article 3(d) of the 2005 Convention requires the courts in Contracting States to apply the law of the chosen court (including its private international law rules) in such a way that does not allow the applicable law to lead to the invalidity of the choice of court agreement where the basis for the invalidity under that law can be applied to the contract generally but cannot fairly be applied to the choice of court agreement when it is treated ‘as an agreement independent of the other terms of the contract’. More controversially, there is a dispute as to whether, and if so how, courts in Contracting States should be able to look beyond the formal validity and substantive validity rules in the 2005 Convention to see if there is an ‘agreement’ between the parties to the exclusive choice of court. This is a matter considered at length by the present author and Mary Keyes elsewhere.17 Their view is that the non-chosen court should be restricted to using the exceptions expressly provided in Article 6 (eg, the agreement is not substantively valid under the law of the chosen court including its private international law rules, or it is so valid but the outcome constitutes a ‘manifest injustice’ in the particular case) rather than being able to make any independent assessment (either in law or in fact) as to whether there was an ‘agreement’ (consent) between the parties. In deference to the authority of the Hartley and Dogauchi, Explanatory Report on the 2005 Convention, Beaumont and Keyes accept that it is possible for the chosen court to decide in an extreme case (like the one cited in the Explanatory Report involving a spam email including an exclusive choice of court agreement for a court in a country where silence creates consent and the person receiving the spam email never responds to it) that there was no ‘agreement’ on exclusive jurisdiction between the parties even if the ‘choice of court agreement’ is formally valid under the Convention and substantively valid under their own law including their own private international law rules.

16 See P Beaumont and M Keyes, ‘Choice of Court Agreements’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 393–405 at 397 and 400. 17 ibid, 394–97.

Relationship with the HCCH Choice of Court Convention  131

F.  Choice of Court Agreements which are Not Exclusive Come within the Scope of Article 5(1)(m) of the 2019 Convention It is noteworthy that the Explanatory Report on the 2019 Convention does not discuss the issue of the substantive validity of a choice of court agreement that is not ‘exclusive’ and therefore falls within the scope of the 2019 Convention. There is also no discussion in that Explanatory Report of whether there is an independent assessment of the existence of ‘agreement’ (consent) to the choice of court agreement. Given that these issues are not resolved in the 2019 Convention, neither in the text nor in the Explanatory Report, it must be understood that the courts of each State where recognition and enforcement of a judgment is sought, where Article 5(1)(m) is a potentially relevant jurisdictional filter, are free to apply their own law, including their own private international law rules, to assess whether there was a choice of court agreement between the parties. In doing so, unlike the 2005 Convention in relation to exclusive choice of court agreements, they are not under the 2019 Convention bound by any ruling of the chosen court on the substantive validity of the choice of court agreement. They are not bound under the 2019 Convention to apply the law of the chosen court to issues relating to the validity of the choice of court agreement. They are not bound under the 2019 Convention to apply the doctrine of severability to determining the validity of the choice of court agreement. They are not prevented by the 2019 Convention from assessing, as a question of fact or as a question of law to which they apply the law of the forum, whether the parties consented to the choice of court agreement. Consideration should be given in a future Guide to Good Practice under the 2019 Convention or in the conclusions and recommendations of a future Special Commission on the 2019 Convention as to whether it should be recommended that the uniform features of the 2005 Convention that are not already incorporated into the 2019 Convention should be regarded as best practice for implementing and interpreting the latter Convention. Notably, it would be helpful if it was clarified that in applying Article 5(1)(m) of the 2019 Convention the court addressed should apply the severability doctrine in Article 3(d) of the 2005 Convention. It should also be clarified that the court addressed should apply the law of the State of the chosen court including its private international law rules to determine the substantive validity of the choice of court agreement and should not be permitted to apply its own private international law rules to this question. Furthermore, the court addressed should, at least as a matter of best practice, be bound by any ruling of the chosen court on the substantive validity of the choice of court agreement.

III.  HCCH Regime for Recognition and Enforcement of Judgments in Relation to Choice of Court Agreements One very important innovation in both18 the 2005 and 2019 Conventions is that they cover recognition and enforcement of non-money judgments. Goddard and Beaumont state that:19 The inclusion of non-monetary relief is a practically important feature of both Conventions. An increasing proportion of wealth is represented by intangible property that can only be effectively protected by

18 See generally on this topic, D Goddard and P Beaumont, ‘Recognition and Enforcement of Judgments in Civil or Commercial Matters’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 407–20. 19 ibid, 411.

132  Paul Beaumont such relief. The ease of dealing across borders, in particular online, means that effective enforcement of non-monetary orders made in one State frequently requires those orders to be practically enforceable in another State where the defendant is situated, and can be made subject to effective practical sanctions to compel performance of the orders.

A second very important common feature of both Conventions is that the grounds for refusal (including the ability to limit the enforcement of damages awards to the compensatory element) ‘should be interpreted and applied in as restrictive a way as possible’.20 A third very significant common feature of both Conventions in relation to recognition and enforcement of judgments is minimum harmonisation. Article 15 of the 2019 Convention allows national law to go beyond the Convention in recognising and enforcing foreign judgments, with the exception in Article 6 prohibiting recognition and enforcement of a judgment on a right in rem in immovable property from a State other than the State where the property is located. The 2005 Convention regulates the terms by which a Contracting Party must ensure that a judgment given by a Court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced under the Convention. However Contracting States are free to go further and recognise and enforce a judgment under national law when the exclusive choice of court agreement does not meet the formal validity requirements in the Convention, for example, an oral agreement on the exclusive choice of court which is not documented in writing but based on a practice between the parties or on a trade usage.21

A.  Exclusive Choice of Court Agreements The positive regime for recognising and enforcing judgments from the court or courts chosen by the parties in their exclusive choice of court agreement is contained only in the 2005 Convention. The 2019 Convention does not provide a basis for recognising and enforcing a judgment where the jurisdiction of the court giving the judgment was based on an exclusive choice of court agreement and none of the other jurisdictional filters in Articles 5 or 6 of the 2019 Convention are satisfied in that case.22 The regime in the 2005 Convention for recognition and enforcement of a judgment given by a court designated in an exclusive choice of court agreement is one where the judgment shall be recognised,23 there is no review of the merits,24 the findings of fact on which the court of origin based its jurisdiction are binding on the court addressed (unless it was a default judgment),25

20 See Explanatory Report on the 2019 Convention (n 3) para 293(b). 21 Arguably, however, the terms of Art 5(1) of the 2005 Convention mean that the courts of a Contracting State are not at liberty to recognise and enforce a judgment from a Contracting State based on those courts having jurisdiction under an exclusive choice of court agreement if the courts of that State have already decided that the exclusive choice of court agreement is substantively invalid. 22 See Explanatory Report on the 2019 Convention (n 3) paras 215 and 220. 23 Art 8(1). 24 Art 8(2). See para 165 of the Explanatory Report on the 2005 Convention (n 7). 25 ibid. This includes findings of fact about whether the agreement was in writing or documented in writing which would make it difficult or impossible to challenge the formal validity of the exclusive choice of court agreement in the court addressed. Such a challenge could only be done in asserting that there was not an ‘exclusive choice of court agreement’ within the meaning of the Convention ‘designating’ the court of the Contracting State which gave the judgment, see Art 8(1) and the Explanatory Report on the Convention at para 164. See further on the implications of being bound by findings of fact as to ‘jurisdiction’ in paras 166–69 of the Explanatory Report on the 2005 Convention (n 7). Note the striking parallel to Art 29 of the Riyadh Convention observed by Beligh Elbalti, ch 9 in this volume.

Relationship with the HCCH Choice of Court Convention  133 and any ruling on the substantive validity of the choice of court agreement by the chosen court is binding.26 The grounds for refusal of recognition and enforcement are classic and ‘may’ be upheld by the court addressed but they are not (by virtue of the 2005 Convention)27 required to be used by that court. The first two are peculiar to choice of court agreements. The first is that ‘the agreement was null and void under the law of the State of the chosen court’ but as noted above no such finding can be made if the chosen court has already determined that the agreement is valid. The second is that ‘a party lacked capacity to conclude the agreement under the law of the requested State’. Here the court addressed gets to apply its own private international law rules to decide which law governs the capacity of each party to enter into the choice of court agreement and to apply the relevant applicable law to determine whether each party has such capacity. This might seem like a significant potential loophole in the Convention, but natural and non-natural persons involved in ‘commercial transactions’28 rarely lack capacity to enter into a choice of court agreement in a commercial contract. The third refusal ground starts with a focus on the protection of the rights of the defendant. The defendant has a right to be notified of the proceedings in the chosen court ‘in sufficient time and in such a way as to enable him to arrange for his defence’.29 This is a factual test, to be interpreted uniformly whilst taking into account the procedural milestones and availability of appropriate lawyers in the chosen court that affect how long a gap is needed between being notified and having to start the defence, rather than requiring compliance with the laws on service under any national law. If the defendant entered an appearance in the chosen court and did not contest notification there, if it was possible to do so there, then the defendant cannot contest notification under this ground in the court addressed. The second part of the notice ground for refusal is designed to protect the minority of States that are determined to protect the ‘fundamental principles’ of their laws on service/notification. If the defendant was notified in the ‘requested State’ (ie, the State where recognition and enforcement of the judgment is being sought) ‘in a manner that is incompatible with the fundamental principles of the requested State concerning service of documents’ then this is a ground upon which recognition or enforcement may be refused.30 The fourth ground on which the judgment may not be recognised or enforced is if it was obtained by fraud in connection with a matter of procedure.31 The fifth ground is the almost completely standard ground of manifest incompatibility with the public policy of the requested State.32 It is an almost omnipresent ground in HCCH Conventions but it is intended to be a safety valve for highly exceptional cases where the fundamental interests of the State addressed

26 Art 9(a) and para 183 of the Explanatory Report on the 2005 Convention (n 7). 27 It is open to the relevant national legislature (where national law permits) when implementing the 2005 Convention to make some of the grounds for refusal mandatory or to remove some or all of the grounds for refusal, see Explanatory Report on the 2005 Convention (n 7) para 182. The latter point is confirmed by the analysis of the same use of ‘may’ in the 2019 Convention (Art 7) in the Explanatory Report on that Convention at para 246. Neither Explanatory Report confirms that a national legislature could make some of the grounds for refusal mandatory but that was certainly understood as a possibility by the drafters of both Conventions even if it is not an approach that those drafters would encourage. Even if a manifest incompatibility with the public policy of the requested State (Art 9(e)) is not a mandatory ground for refusal it is difficult to imagine a scenario where the court addressed would make such a finding and then exercise its discretion to recognise and enforce the judgment. 28 See the Preamble to the 2005 Convention. 29 Art 9(c)(i) and para 186 of the Explanatory Report on the 2005 Convention (n 7). 30 Art 9(c)(ii) and para 187 of the Explanatory Report on the 2005 Convention (n 7). 31 Art 9(d) and para 188 of the Explanatory Report on the 2005 Convention (n 7). 32 Art 9(e) and paras 189–90 of the Explanatory Report on the 2019 Convention (n 3).

134  Paul Beaumont (including protecting the human rights of the parties) are affected by the judgment being recognised or enforced in that State.33 Finally, there are two possible grounds for refusal where the judgment is inconsistent with a prior judgment.34 The first gives priority to any inconsistent judgment in the requested State between the same parties. In principle this should only arise where the courts in the requested State had decided that they could legitimately invoke one of the exceptions to giving way to the exclusively chosen court provided by Article 6 of the 2005 Convention. The second gives priority to an earlier judgment from another State (not necessarily from a Contracting State whose courts would be obliged in principle to give way to the chosen court under Article 6 of the 2005 Convention) between the same parties on the same cause of action where that judgment meets the conditions necessary for its recognition in the requested State. It is here that it is worth noting that the 2019 Convention gives a new tool to States that are party to both the 2005 and 2019 Conventions to try to avoid a judgment of a non-chosen court being given priority over a judgment of the chosen court (something permitted by the last ground for refusal in the 2005 Convention). The 2019 Convention creates a ground for refusal of recognition of a judgment from a non-chosen court when the proceedings in that court were ‘contrary to an agreement … under which the dispute in question was to be determined in a court of a State other than the State of origin’.35 This provision should be used by a Contracting State to refuse to recognise and enforce a judgment from a non-chosen court under the 2019 Convention whenever proceedings are pending in the exclusively chosen court with a view to waiting to enforce the judgment of the chosen court under the 2005 Convention. This is the way to uphold the policy of the 2005 Convention to create ‘an international legal regime that provides certainty and ensures the effectiveness of exclusive choice of court agreements’.36 As Beaumont and Goddard note about the use of Article 7(1)(d) under the 2019 Convention: The courts of the State addressed should not [use it] if the party now relying on the derogative effect of the choice of court agreement expressly consented, or entered an appearance but did not object timeously, to the jurisdiction of the courts of the State of origin.37

Lastly the 2005 Convention permits the refusal of recognition or enforcement of a judgment ‘to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered’.38 This means that the compensatory element of the judgment must be recognised and enforced and that any higher award of damages than the compensatory element can be recognised and enforced but need not be under the Convention. The compensatory element of a judgment should include any part of the damages award which serves to cover costs and expenses relating to the proceedings.39

B.  Choice of Court Agreements that are Not Exclusive The positive regime for recognising and enforcing judgments from the court or courts chosen by the parties in their choice of court agreement that is not ‘exclusive’ is contained in the 2019 33 For the almost omnipresent nature of public policy in HCCH Conventions and an analysis of its purpose, see T Hartley, ‘Public Policy and Mandatory Provisions’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 75–87. 34 See Art 9(f) and (g) and paras 191–93 of the Explanatory Report on the 2005 Convention (n 7). 35 Art 7(1)(d) of the 2019 Convention and paras 267–69 of the Explanatory Report on the 2019 Convention (n 3). 36 See Preamble to the 2005 Convention. 37 Goddard and Beaumont (n 18) 414. 38 Art 11(1) and paras 203–05 of the Explanatory Report on the 2005 Convention (n 7). 39 Art 11(2) and paras 203–05 of the Explanatory Report on the 2005 Convention (n 7).

Relationship with the HCCH Choice of Court Convention  135 Convention.40 It is very similar to the regime described above in relation to recognition and enforcement of judgments given by a court designated in an exclusive choice of court agreement under the 2005 Convention. Therefore, in this section only the differences between the two regimes will be set out. Findings of fact in the court of origin are not binding on the court addressed. Thus, the question whether the choice of court agreement which is not exclusive was concluded or documented in writing is completely open in the court addressed even if the court of origin made findings of fact on this issue. The court addressed is not bound by any decision of the court of origin on the substantive validity of the choice of court agreement and is not obliged to apply the law of the chosen court to determine whether that agreement is substantively valid. Recognition or enforcement of the judgment from a chosen court can be postponed or refused if proceedings are pending before a court of the requested State which are between the same parties on the same subject matter, if those proceedings were instituted earlier than the proceedings in the chosen court and there is a close connection between the dispute and the requested State.41 However, such a suspension or refusal would not be appropriate if the court in the requested State is exercising jurisdiction ‘contrary’ to an agreement under which the dispute in question was to be determined in a court of a State other than the requested State.42 It would be doing so if the choice of court agreement, although not exclusive, had derogating effect. This would be the case if it was an asymmetric agreement and the party bringing proceedings in the requested State was bound by the agreement to only bring proceedings in the chosen court. Another example would be where the choice of court agreement permitted the parties to sue each other only in the courts of two States and the requested State was not one of those two States. In these cases the interest in protecting party autonomy should outweigh the fact that the requested State has a close connection with the dispute as required by Article 7(2)(b) of the 2019 Convention. The court addressed can refuse to recognise or enforce the judgment on the basis that the judgment was obtained by ‘fraud’ and not just on the basis that it was obtained by fraud ‘in connection with a matter of procedure’.43 However, as the Explanatory Report on the 2019 Convention explains this difference is ‘unlikely to have an impact in practice’44 because under the 2005 Convention fraud as to substance could lead to a refusal to recognise and enforce the judgment on the basis of public policy.45 The court addressed cannot use forum non conveniens, or any other principle for declining jurisdiction like lis pendens, to ‘Refuse the recognition or enforcement of a judgment under this Convention on the ground that recognition or enforcement should be sought in another State’.46 In other words, the party seeking recognition and enforcement of a judgment is entitled to do so in more than one State at the same time until the judgment is entirely satisfied and to bring recognition and enforcement proceedings in a Contracting State even if there are no assets present in the jurisdiction at the time they initiate the proceedings.

40 The 2005 Convention has an optional declaratory regime that could in theory cover a variety of choice of court agreements that are not exclusive, but this system has not been opted into by any Contracting State to that Convention. 41 Art 7(2) of the 2019 Convention and paras 273–76 of the Explanatory Report on that Convention. 42 cf Art 7(1)(d) of the 2019 Convention. 43 Compare Art 7(1)(b) of the 2019 Convention with Art 9(d) of the 2005 Convention. 44 See para 257. However, see H van Loon, ‘Towards a global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters’ (2020) 38 Nederlands Internationaal Privaatrecht 4, 17 who raises concerns that ‘this may invite a review of the merits of the judgment, contrary to the provision of Article 4(2) which prohibits such review’. 45 See note 228 in the Explanatory Report on the 2005 Convention (n 7). 46 Art 13(2) and paras 316–19 of the Explanatory Report on the 2005 Convention (n 7).

136  Paul Beaumont As Goddard and Beaumont point out:47 The preparatory documents of the Judgments Convention are explicit48 that the effects of the judgment under that Convention only extend to a strict res judicata effect (cause of action estoppel). So the Judgments Convention does not provide for issue estoppel,49 let alone prevent the reopening of issues that could have been (but were not) addressed in the foreign litigation (competent and omitted or abuse of process).50

The same conclusion reached above for the 2019 Convention should be arrived at in relation to the 2005 Convention.51

IV.  HCCH Regime for Choice of Court Agreements: Duties on the Chosen Court A.  Under the 2005 Convention The 2005 Convention provides in Article 5(1) that the exclusively chosen court must hear the case unless the exclusive choice of court agreement is substantively invalid under its own law (including its private international law rules), or does not apply to the dispute (eg, because the dispute is a tort dispute and the scope of the choice of court agreement is expressly limited to contractual disputes between the parties), or is not formally valid under the terms of the Convention.52 In Article 5(2) there is a complete prohibition on the chosen court from declining to hear the case on the basis that it should be decided in a court of another State. The widespread significance of Article 5(1) and (2) is highlighted by Beaumont and Keyes:53 This excludes the principles of lis pendens and forum non conveniens and removes any discretion that courts might otherwise have not to enforce an exclusive choice of court agreement designating the forum. 47 Goddard and Beaumont (n 18) 410. 48 See Explanatory Report on the 2019 Convention (n 3) paras 114–15. See also PA Nielsen, ‘The Hague 2019 Judgments Convention – from failure to success?’ (2020) 16 Journal of Private International Law 205, 225, 226. 49 ie, preclusion on an issue of fact or law decided by the foreign court which was necessary for its determination of the case. For an interesting discussion of cause of action estoppel, issue estoppel and wider concerns about issues that could have been addressed in the earlier case but which were not, see Virgin Atlantic Ltd v Zodiac Seats UK Ltd [2013] UKSC 46. 50 See P Beaumont, ‘Review of Res Judicata, Estoppel and Foreign Judgments by Peter Barnett’ (2002) 118 Law Quarterly Review 324, 326: ‘If caution is necessary within Europe, then it is all the more necessary in the global context. As Barnett points out, the Nygh and Pocar Report (Report of the Special Commission (2000), p 96) on the draft Hague Judgments Convention states that the law of the place where the judgment was granted determines the preclusive effects of any issues decided in that judgment in the countries where that judgment is recognised under the Convention. This is surely the wrong solution. If the draft Hague Convention is ever finalised this part of the Report should be altered. Strict cause of action estoppel (res judicata) would seem to be an accepted part of all major legal systems and therefore its recognition is not a problem. However, issue estoppel and any wider doctrine of abuse of process are not features of all major legal systems and therefore it would not be reasonable to apply unknown, and sometimes rather uncertain, foreign doctrines that produce much wider preclusive effects than their own domestic judgments’. The Revised Preliminary Explanatory Report prepared for the Fourth Meeting of the Special Commission of May 2018, Prel Doc No 10, paras 98–99, available at: www.hcch.net/en/publications-and-studies/details4/?pid=6644&dtid=61, shows that the Third Meeting of the Special Commission had decided not to give the effects to the judgment that it has in the State of origin but rather to give a uniform interpretation to the effects of a judgment under the Convention restricted to cause of action estoppel, not issue estoppel or any wider notion of abuse of process. Of course, recognition can go further under national law. 51 This is also the view, in his personal capacity, of one of the co-rapporteurs to the 2019 Convention: ‘Probably, the preferable way to interpret this silence is by reference to the 2005 Convention. The parallelism between both instruments calls for a consistent interpretation and therefore an understanding that the main obligation under the Convention is to give res judicata effect to the operative part of the judgment; giving other effects further than this is left to national law’; F Garcimartín, ‘The Judgments Convention: Some Open Questions’ (2020) 67 Netherlands International Law Review 19, 27. 52 The substantive and formal validity requirements are discussed above. 53 See Beaumont and Keyes (n 16) 401–02.

Relationship with the HCCH Choice of Court Convention  137 This is one of the most important innovations in the Convention which simplified litigation in favour of the courts exclusively chosen by the parties compared to the prior position in both civil and common law countries. The chosen court when it is second seised need not wait for a non-chosen court that was first seised to decide if it has jurisdiction and the defendant in the chosen court cannot argue that the chosen court is forum non conveniens because there is a more appropriate forum elsewhere. When combined with the very broad scope of application of the Convention and thus of Article 5 in Contracting States – no connection between the parties and Contracting States is required and the definition of an international case governed by the Convention is any non-domestic element (which includes a choice-of-law clause) – it means that even parties from non-Contracting States to the Convention can be sure their valid exclusive choice of the courts of a Contracting State will be upheld and jurisdiction will not be declined even for ‘strong cause’ as would have happened under the common law.54

There is an additional basis on which the chosen court can decline to exercise jurisdiction that is not expressly mentioned in the Convention but is clarified in the Explanatory Report and can be justified on the basis of the exclusion of arbitration from the scope of the Convention:55 ‘[t]he requirement to hear the case will not be violated where a court declines jurisdiction on the ground that the dispute should be decided by an arbitrator’.56

B.  Under the 2019 Convention Since the HCCH 2019 Convention does not address the issues of direct jurisdiction or parallel proceedings, it does not impose any obligations on the chosen court.57

V.  HCCH Regime for Choice of Court Agreements: Duties on the Non-Chosen Court A.  Under the 2005 Convention There is in principle a duty on the non-chosen court to decline jurisdiction in favour of the chosen court under Article 6 of the 2005 Convention. The non-chosen court may decide to hear the case only if the choice of court agreement is not formally valid under the Convention, or the agreement does not apply to the dispute brought before it, or one of the exceptions listed in Article 6 applies: a. the choice of court agreement is not substantively valid under the law of the State of the chosen court including its private international law rules; 54 The scope of the 2005 Convention is defined in Art 1(2), see Beaumont, ‘Hague Choice of Court Agreements’ (n 1) 149–50 on this issue in the context of the declarations under Arts 19 and 20. For the Commonwealth common law permitting an exclusively chosen court to decline jurisdiction on the basis of ‘strong cause’, see the case law flowing from The Eleftheria [1970] P 94 and S Avraham-Giller, ‘The court’s discretionary power to enforce jurisdiction clauses: time for a change?’ (2022) 18 Journal of Private International Law 209. 55 See Art 2(4) and Beaumont and Keyes (n 16) 400. See also the fact that the chosen court can decline to exercise jurisdiction in relation to an exclusive choice of court agreement falling within an Art 19 or 21 declaration made by that State under the 2005 Convention, discussed in text accompanying nn 75–78 below. 56 Explanatory Report on the 2005 Convention (n 7) para 124, fn 155. See also José Angelo Estrella Faria, ch 16 in this volume. 57 Issues of parallel proceedings are being addressed in the HCCH Jurisdiction Project and this may give some priority to non-exclusively chosen courts, that have a derogating effect, over courts having another non-exclusive basis of jurisdiction. For progress on this project follow the HCCH website at: www.hcch.net/en/projects/legislative-projects/ jurisdiction-project.

138  Paul Beaumont b. a party to the choice of court agreement lacked capacity to enter into the choice of court agreement under the law of the court seised including its private international law rules; c. giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the court seised; d. for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; or e. the chosen court has decided not to hear the case. These exceptions are discussed elsewhere.58 One interesting question in relation to the public policy exception is whether the forum’s internationally mandatory rules justify non-enforcement of a choice-of-court agreement on that ground.59 However, it did not do so in Motacus,60 where UK law has an overriding mandatory provision in favour of compulsory adjudication in the United Kingdom of disputes in relation to construction contracts.61 Judge Hodge gave effect to a French exclusive choice of court agreement under the Convention by saying that the UK adjudicator’s award was an interim one (not res judicata), lawful under Article 7 of the 2005 Convention (and immediately enforceable in the UK), that could be departed from by the French courts if one of the parties brings proceedings there, and if so then the judgment of the French courts could be enforced in the United Kingdom under the Convention if it altered the adjudicator’s award in any way.

B.  Under the 2019 Convention As the 2019 Convention does not regulate conflicts of jurisdiction, it does not impose an obligation on a non-chosen court to decline to exercise jurisdiction. At the stage of recognition and enforcement of a foreign judgment given by the non-chosen court Article 7(1)(d) empowers, but does not require, the courts to deny recognition and enforcement on the basis that the judgment is ‘contrary to the agreement’ between the parties.62

VI.  Scope of the HCCH Regimes under the 2005 and 2019 Conventions Both Conventions share the same approach to scope, distinguishing between civil or commercial matters (private law) which are within scope and public law matters which are outside scope. Both Conventions also do not automatically exclude proceedings involving governments from their scope, if the proceedings are civil or commercial in nature, while leaving State immunity rules untouched. The 2019 Convention has three further exclusions from scope for the armed forces, law enforcement and unilateral sovereign debt restructuring. It gives States the option to make a declaration excluding some private law matters from scope in relation to governments, government agencies and natural persons working for them.63 58 See the Explanatory Report on the 2005 Convention (n 7) paras 141–59 and in Goddard and Beaumont (n 18) 414–15. 59 B Marshall and M Keyes, ‘Australia’s Accession to the Hague Convention on Choice of Court Agreements’ (2017) 41 Melbourne University Law Review 246, 262–65. See also Beaumont and Keyes (n 16) at 403. 60 Motacus Constructions Limited v Paolo Castelli SPA [2021] EWHC 356 (TCC), see especially para 54. 61 See s 104(7) of the Housing Grants, Construction and Regeneration Act 1996. 62 Discussed above at text accompanying nn 36–38. 63 For more details on this issue, see P Beaumont, ‘Judgments Convention: Application to Governments’ (2020) 67 Netherlands International Law Review 121.

Relationship with the HCCH Choice of Court Convention  139 Both Conventions exclude status and capacity of natural persons, family law matters, maintenance, wills and succession, insolvency, carriage of passengers and goods and liability for nuclear damage from scope.64 The 2019 Convention also excludes all ‘intellectual property’ matters from scope (but not disputes which are primarily contractual) whereas the 2005 Convention includes copyright and related rights within its scope and infringement proceedings for other intellectual property rights which are brought for a breach of contract or could have been brought for breach of that contract.65 Defamation and privacy matters are excluded from the scope of the 2019 Convention.66 However, employment and consumer contracts are included within the scope of the 2019 Convention and excluded from the 2005 Convention. So consumers and employees can choose to rely on a non-exclusive choice of court agreement and get the judgment enforced under the 2019 Convention utilising Article 5(1)(m) but employers and traders cannot rely on that provision to get a judgment based on a choice of court agreement enforced against employees and consumers.67 The exclusion for marine pollution is narrower under the 2019 Convention than the 2005 Convention and ‘emergency towage and salvage’ is included in the 2019 Convention but excluded from the 2005 Convention.68 The exclusion of competition law matters is absolute under the 2005 Convention but some hard core cartel issues are included within the scope of the 2019 Convention.69 Both Conventions completely exclude arbitration from scope.70 Thus, arbitral awards can be recognised and enforced under the highly successful New York Convention on Arbitration71 and court judgments can circulate under the relevant HCCH Convention. In the unusual event of a conflict between a court judgment and an arbitral award on the same subject matter between the same parties the arbitral award would prevail (see Article 23(2) of the 2019 Convention).72

VII.  HCCH Regime for Choice of Court Agreements can be Altered by Declarations Article 21 of the 2005 Convention is a novel provision introduced to allow States to carve out from scope specific subject matters in relation to which they have a ‘strong interest’ not to assume 64 See Art 2 of both Conventions and the explanatory reports on those Articles for both Conventions. The exclusion of carriage by sea contracts is particularly regrettable, see V Ruiz Abou-Nigm, ‘Maritime Exceptionalism in Global Private International Law’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 379–92 at 388–89. 65 See further, Goddard and Beaumont (n 16) 415–16 and P Torremans, ‘Intellectual Property’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 351–63 at 351–54. See also, paras 64–65 of the Explanatory Report on the 2019 Convention (n 3). 66 See Goddard and Beaumont (n 16) 416–17 and paras 60–63 of the Explanatory Report on the 2019 Convention (n 3). 67 See Art 5(2) of the 2019 Convention and paras 221–26 of the Explanatory Report on the 2019 Convention (n 3). For further discussion of the implications for consumers and employees see the concluding remarks below. 68 Compare Art 2(2)(g) of the 2005 Convention with Art 2(1)(g) of the 2019 Convention and see para 55 of the Explanatory Report on the 2019 Convention (n 3). See also, ‘Note on reconsidering “marine pollution and emergency towage and salvage” within the scope of the draft Convention on the recognition and enforcement of foreign judgments in civil or commercial matters’, Prel Doc No 12 of June 2019. 69 Compare Art 2(2)(h) of the 2005 Convention with Art 2(1)(p) of the 2019 Convention and see paras 69–73 of the Explanatory Report on the 2019 Convention (n 3). See also Goddard and Beaumont (n 16) 417 and M Danov and C Otero García-Castrillón, ‘Competition Law Enforcement: Private International Law and Access to Effective Legal Remedies in Cross-Border Cases’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 233–46, esp 236–40. 70 See José Angelo Estrella Faria, ch 16 in this volume. 71 See G Cordero-Moss, ‘Arbitration’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 365–77. 72 See Goddard and Beaumont (n 18) at 418. The point is not so clear in the 2005 Convention but of course should not arise in that context because the parties should not agree to an exclusive choice of court agreement and to arbitration in relation to the same dispute, and if they do it is clear that the chosen court can give way to the arbitral process under the 2005 Convention, see (n 56) above.

140  Paul Beaumont obligations under the Convention. This provision was relied on by the EU to exclude some insurance contracts from the scope of their obligations when becoming a Party to the 2005 Convention.73 In doing so the EU interpreted Article 21 to allow the declaration to be restricted to part of a subject matter rather than all of it.74 That possibility is clearly permitted by the equivalent provision in the 2019 Convention (Article 18). The EU declaration (and the identical Danish and UK declarations)75 on insurance contracts leaves within the scope of the 2005 Convention: a. b.

choice of court agreements in insurance contracts entered into after the dispute has arisen, and choice of court agreements entered into at any time for: (i) reinsurance contracts, (ii) large risks insurance contracts as defined in the declaration, and (iii) insurance contracts where the insurer and the policy holder choose a court which is in the country of their shared domicile or shared habitual residence at the time the agreement was entered into.

Both Conventions permit Contracting Parties by declaration to refuse to recognise and enforce a judgment from a court designated in a choice of court agreement where both parties are (habitually) resident in the requested State, and the relationship of the parties and all other elements relevant to the dispute, other than the location of the chosen court, were connected only with the requested State.76 In other words a purely domestic case in the requested State apart from the choice of court agreement.

VIII.  Concluding Remarks The 2019 Convention provides some of the finishing pieces of the jigsaw for the HCCH regime on choice of court agreements in civil or commercial matters. The 2005 Convention is an excellent and robust regime for exclusive choice of court agreements. It ensures that commercial transactions will be litigated in the courts of a single Contracting State when the parties choose those courts and do not expressly provide that it is not an exclusive choice, that the courts of other Contracting States will invariably defer to the choice of the parties, and that the courts of all Contracting States stand ready to recognise and enforce the judgment of the chosen court. Some necessary but exceptional flexibility is provided to protect vital State interests and the rights of the defendant, notably through the public policy exception that can be invoked by a non-chosen court seised of the substantive dispute or by a court where recognition and 73 Denmark and the United Kingdom have made the same declaration. 74 See P Beaumont, ‘The Revived Judgments Project in The Hague’ (2014) 4 Nederlands Internationaal Privaatrecht 532, 538. 75 The terms of the EU declaration are available through the status table for the 2005 Convention on the HCCH website, see: https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1044&disp=resdn. For an ­argument that the UK should drop the insurance contract declaration now that it has left the EU, see P Beaumont, ‘Some Reflections on the Way Ahead for UK Private International Law after Brexit’ (2021) 17 Journal of Private International Law 1 at 7. 76 See Art 20 of the 2005 Convention and in similar terms Art 17 of the 2019 Convention. None of the Parties to the 2005 Convention has made use of the declaration in Art 20 and none of the parties to the 2019 Convention have made use of the declaration in Art 17. Art 19 of the 2005 Convention permits States to make a declaration removing their obligation under Art 5 of the Convention to hear a case where their courts are exclusively chosen if the only connection between that State and the parties or the dispute is the location of the chosen court. However, no Contracting Parties have made use of this declaration to date.

Relationship with the HCCH Choice of Court Convention  141 enforcement of the chosen court’s judgment is sought. It is very important that the Conventions are interpreted uniformly in accordance with the Vienna Convention on the Law of Treaties,77 taking full account of the Explanatory Reports and, where appropriate, of the minutes of the Diplomatic Sessions, as done in the two leading English cases dealt with in this chapter, ie Motacus and Etihad. It is excellent that the Permanent Bureau of the HCCH is trying to track the case law on the 2005 Convention,78 and in due course it will be desirable if that turns into a database for that Convention and for the 2019 Convention, like the very successful INCADAT database for the Hague Child Abduction Convention 1980.79 The 2019 Convention adds a robust regime for recognition and enforcement of judgments from a court designated in a choice of court agreement that is not exclusive. This means that the full range of party autonomy is respected in business-to-business dealings. The parties can select in a choice of court agreement the courts in only one State to resolve their disputes and get the full benefits of the 2005 Convention. Otherwise, they can be sure that if they get a judgment from a court chosen by the parties in a choice of court agreement that is not ‘exclusive’ within the meaning of the 2005 and 2019 Conventions they can get it enforced under the 2019 Convention. The 2019 Convention also provides a power to courts in Contracting States to refuse to recognise a judgment from another Contracting State when that judgment has been given ‘contrary’ to a choice of court agreement (whether ‘exclusive’ under the 2005 Convention or not exclusive under the 2019 Convention but nonetheless one having derogating effect). The 2019 Convention enables consumers and employees to benefit from a choice of court agreement that is not exclusive by being able to get the judgment from the chosen court enforced against the employer or trader. The 2019 Convention protects consumers and employees from any attempt by the trader or employer to enforce the judgment of the chosen court in another Contracting State, unless the chosen court was the habitual residence of the consumer or employee at the time they became party to the proceedings there, or the consumer or employee brought the proceedings in the chosen court and lost, or the consumer or employee was the defendant in the court of origin and they expressly consented (orally or in writing addressed to the court) to the jurisdiction of the court of origin in the course of the proceedings in which the judgment was given.80 The 2005 Convention does not apply to consumers and employees. Rationally the combined effects of the 2005 and 2019 Conventions might be to encourage non-exclusive jurisdiction choice of court agreements in favour of the habitual residence of the consumer/employee at the time the proceedings are brought because the resulting judgment will be enforceable against either party.

77 See Arts 31–32 of the Vienna Convention on the Law of Treaties; and Beaumont, ‘Reflections on the Relevance of Public International Law to Private International Law Treaty Making’ (n 9) 22–33. 78 See: www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court/case-law-coca. 79 See: www.incadat.com/en. 80 See Art 5(1)(a), (c) and (e) and Art 5(2) of the 2019 Convention and the Explanatory Report on the 2019 Convention (n 3) paras 221–26.

142

part ii Prospects for the World

144

7 European Union ANDREAS STEIN AND LENKA VYSOKA*

I. Introduction The European Union (EU) became the first Contracting Party to the HCCH 2019 Judgments Convention on 29 August 2022. The EU’s accession to the Convention marked the successful termination of nearly three years of preparations and legislative negotiations. This chapter will expound on the EU’s perspective on the Convention and will provide an overview of the preparation process behind the accession of the EU to the Convention. It will also shed light on the reasons why the EU made a declaration under Article 18 of the Convention concerning non-residential leases (tenancies) of immovable property situated in the EU when it joined the Convention.

II.  The HCCH 2019 Judgments Convention in the EU Legal System The EU has always been supportive of creating a multilateral system for the recognition and enforcement of judgments in civil or commercial matters and was thus actively involved in the negotiation process of the HCCH 2019 Judgments Convention since the very start of the ‘Judgments Project’ in the 1990s. The EU has exclusive external competence in matters of the recognition and enforcement of judgments in civil and commercial matters and it is thus the EU as a bloc, as opposed to individual Member States, that may act internationally in this field. The EU derives its competence to regulate the recognition and enforcement of foreign judgments from Article 81(2) of the Treaty on the Functioning of the European Union (TFEU). On this legal basis, the EU has already adopted internal rules governing the recognition and enforcement of judgments in civil and commercial matters – the ‘Brussels Ia Regulation’1 – that apply in relations between EU Member States. This comprehensive internal system of mutual recognition and enforcement of judgments in civil and commercial matters is an important complement to the EU’s internal market. As a result of the adoption of the Brussels Ia Regulation, the Union has thus acquired its exclusive external

* Both authors work in the European Commission. The views expressed in this chapter are those of the authors alone and do not necessarily concur with those of the Commission. 1 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1.

146  Andreas Stein and Lenka Vysoka competence to regulate matters concerning the recognition and enforcement of third-country judgments in civil and commercial matters2 since, in accordance with Article 3(2) TFEU, the Union has exclusive competence for the conclusion of an international agreement insofar as such conclusion may affect common EU rules or alter their scope. In the negotiations of the HCCH 2019 Judgments Convention, the EU was represented by the European Commission. The Commission acted on the basis of a negotiation mandate agreed by the Council of the European Union in 2016.3 Member States were also closely involved in a continuous process of coordinating the EU’s position ahead of negotiation sessions but also in the course of those sessions, often on a daily basis. Given the EU’s exclusive external competence, Member States cannot ratify the HCCH 2019 Judgments Convention in their own right and it is only the EU that can join the Convention as a bloc. The exclusive external competence in matters of the recognition and enforcement of foreign judgments extends to all Member States with the exception of Denmark, which is not bound by any EU action in the area of judicial cooperation in civil matters.4 Therefore, on the international plane, Denmark is not bound by the EU’s accession to the HCCH 2019 Judgments Convention. As a result of the EU’s accession to the Convention, the Convention has become a part of the EU acquis that binds EU Member States (with the exception of Denmark) and EU bodies alike, thus complementing the already existing legal framework in the Union (the Brussels Ia Regulation),5 as well as the Lugano Convention that the EU had concluded with Iceland, Norway, Denmark and Switzerland.6 Therefore, the Court of Justice of the European Union (CJEU) will be responsible for interpreting the rules in the Convention and that interpretation will be binding on national courts of EU Member States. Aside from its role in interpreting the Convention, the CJEU is also a court of a Contracting Party whose judgments may in principle circulate under the Convention (even if only few decisions will be issued in cases falling within the scope of the Convention).7 The HCCH 2019 Judgments Convention not only provides that Regional Economic Integration Organisations (REIOs) such as the EU are allowed to join the Convention,8 it also includes a 2 This has been confirmed by the Court of Justice of the European Union in its Lugano Opinion, where the Court held that the exclusive external competence of the European Community, first laid down in the ERTA judgment, applies, inter alia, to the recognition and enforcement of third-country judgments in civil and commercial matters. See Opinion 1/03, ECLI:EU:C:2006:81 and Commission v Council, European Agreement on Road Transport, ERTA, 22/70, ECLI:EU:C:1971:32. 3 The Outcome of the Council Meeting on Competitiveness (3470th Council meeting) of 26 and 27 May 2016, No 9357/16 and the Draft Council Decision (No 8814/16) authorising the opening of negotiations on a Convention on the recognition and enforcement of judgments in civil and commercial matters (the Judgments Convention) in the framework of the Hague Conference on Private International Law. The negotiation mandate requested, inter alia, that the Convention should adhere as closely as possible to the existing European legislation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Moreover, based on the mandate, the EU advocated for a Convention with the widest possible scope, which would make a difference to the current status quo concerning the recognition and enforcement of foreign civil and commercial judgments. 4 See Arts 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the TFEU, according to which Denmark does not take part in any measures adopted under Title V TFEU (this including Art 81 TFEU). 5 In this respect, it is worth mentioning that the Brussels Ia Regulation does not in principle apply, aside from limited rules on exclusive jurisdiction, consumer and employment cases, lis pendens and on related proceedings, in relation to third, non-EU countries. In particular, it does not contain rules on the recognition and enforcement of judgments rendered in non-EU countries. 6 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2007] OJ L339/3–41. A similar structure has been established in relation to Denmark, see Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2013] OJ L79/4-6. 7 For instance, where the CJEU rules on contractual matters based on a non-exclusive choice of court agreement. However, it is expected that CJEU judgments that would circulate under the Convention will be rare. 8 Pursuant to Art 26 of the HCCH 2019 Judgments Convention, regional economic integration organisations can sign, accept, approve or accede to the Convention.

European Union  147 ‘disconnection clause’ in its Article 23(4) ensuring that the Convention does not conflict with the internal rules of an REIO. For internal cases in the EU, the disconnection clause gives precedence to EU rules over the rules in the Convention. The Convention will thus not apply to the recognition or enforcement in one EU Member State of a judgment that was given in another EU Member State. Likewise, Article 23(2) of the HCCH 2019 Judgments Convention also provides that international agreements adopted prior to the entry into force of the HCCH 2019 Judgments Convention take precedence over the rules of the Convention. This is not only relevant with respect to the Lugano Convention, but also to any bilateral or multilateral international agreement entered into by EU Member States in the past. Given the differences between the Member States’ current systems for the recognition and enforcement of foreign judgments originating from non-EU Member States, the Convention would affect these systems to a different extent. Currently, several Member States have comparatively liberal rules on the acceptance of foreign judgments.9 On the other hand, the HCCH 2019 Judgments Convention will improve the acceptance of foreign judgments especially in those Member States that currently have more restrictive national systems (for instance Nordic Member States).10 The HCCH 2019 Judgments Convention will provide a minimum standard for the circulation of civil and commercial judgments vis-a-vis third, non-EU countries that are Parties to the Convention and create a level playing field among the Member States concerning the acceptance of third-country judgments. However, national systems for the recognition and enforcement of foreign judgments will not become obsolete. Not only does the Convention lay down merely a minimum standard (a ‘floor’) for recognition and enforcement and allow the simultaneous application of more generous national rules, it will also apply only in relation to countries that will join the Convention. Hence, the HCCH 2019 Judgments Convention will coexist with the present national rules for the recognition and enforcement of foreign civil and commercial judgments that will apply to judgments originating from countries that are not Parties to the Convention.

III.  The Process for the EU’s Accession to the Convention In line with the EU Treaties, the decision that the EU can join an international agreement like the HCCH 2019 Judgments Convention needs to be adopted according to a special legislative procedure. According to this procedure, the European Commission proposes a decision to join the agreement and the decision is adopted by the Council of the European Union after obtaining the consent of the European Parliament. The European Commission formally proposed for the EU to accede to the HCCH 2019 Judgments Convention in July 2021 once an analysis of the impacts of the possible EU accession to the HCCH 2019 Judgments Convention had been finalised in spring 2021.11 The proposal for the EU’s accession was relatively concise in that it contained a mere five articles.12 It was proposed 9 eg, Germany, Greece, Italy and Spain. See SP Baumgartner, ‘How Well Do US Judgments Fare in Europe?’ (2008) 40 George Washington International Law Review 173. For a country-by-country summary of recognition and enforcement requirements, see L Garb and JDM Lew, Enforcement of Foreign Judgments (Kluwer Law International 2016) (loose-leaf). 10 M Hellner, ‘Sweden’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol I (Edward Elgar 2017) 2548; U Liukkunen, ‘Finland’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol I (Edward Elgar 2017) 2078. 11 As a part of the proposal, the Convention has been translated into all 24 official EU languages. 12 Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, COM(2021) 388 final.

148  Andreas Stein and Lenka Vysoka that the Union should conclude the Convention in one go by way of accession. Even though the EU has previously used a two-step process – signature and ratification – when joining the HCCH 2005 Choice of Court Convention,13 a single-step accession was considered more practicable this time. Pursuant to Articles 24(3) and 28 of the Convention, accession to the Convention can also occur before its entry into force. The legal basis under which the EU can join the Convention is to be found in Articles 81(2)(a) and 218(6)(a) TFEU. The impact assessment and the related legal analysis that had informed the Commission’s proposal concluded that the EU should join the HCCH 2019 Judgments Convention while making a limited declaration concerning commercial leases (tenancies) of immovable property. Such a declaration pursuant to Article 18 of the HCCH 2019 Judgments Convention was indeed included in the proposal. The Commission’s proposal for the Council decision on the EU accession to the HCCH 2019 Judgments Convention passed smoothly through the EU legislative process. The Council agreed on the text without making any substantive changes to the Commission proposal (only slightly modifying the formulation of the declaration on commercial/non-residential leases of immovable property) and requested the European Parliament’s consent on 10 December 2021. The Parliament gave its consent on 23 June 2022.14 The process was subsequently concluded when the Council adopted the decision for the EU to join the HCCH 2019 Judgments Convention on 12 July 2022.15 Finally, the instrument of accession of the EU to the HCCH 2019 Judgments Convention was lodged with the depositary of the Convention on 29 August 2022.16 The deposit took place in a joint ceremony together with Ukraine as the second Contracting Party to the Convention. Since there are now two Contracting Parties to the HCCH 2019 Judgments Convention on 29 August 2022, the Convention will enter into force on 1 September 2023 in accordance with Article 28 of the Convention.

IV.  Why the EU Joined the HCCH 2019 Judgments Convention The EU started its internal process potentially leading towards its accession to the HCCH 2019 Judgments Convention soon after the Convention was concluded at the Diplomatic Session in summer 2019. The proposal by the European Commission to join the Convention was preceded by a thorough process of assessment of impacts of a possible EU accession. This included several general and targeted consultations of stakeholders and national authorities, as well as a study of economic and other impacts of the possible accession. The impact assessment study showed that the EU’s accession to the Convention could bring about several important improvements to the current system of international litigation. Should

13 See Council Decision of 26 February 2009 on the signing on behalf of the European Community of the Convention on Choice of Court Agreements (2009/397/EC) [2009] OJ L133/1; and Council Decision of 4 December 2014 on the approval, on behalf of the European Union, of the Hague Convention of 30 June 2005 on Choice of Court Agreements (2014/887/EU) [2014] OJ L353/5. 14 European Parliament legislative resolution of 23 June 2022 on the draft Council decision concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (13494/2021 – C9-0465/2021–2021/0208(NLE)). TA/2022/0261. 15 Council Decision (EU) 2022/1206 of 12 July 2022 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, ST/13494/2021/INIT, [2022] OJ L187/1–3. 16 The Ministry of Foreign Affairs of the Kingdom of the Netherlands. See Art 24(4) of the Convention.

European Union  149 the Convention be adopted worldwide, a global system of harmonised rules on the mutual recognition and enforcement of judgments in civil and commercial matters stands to improve the current suboptimal patchwork of divergent national rules and bilateral and regional agreements on the circulation of judgments. At present, due to the absence of a comprehensive international framework for the recognition and enforcement of foreign judgments in civil and commercial matters, individuals and businesses seeking to have a judgment given in the EU recognised and enforced in a non-EU country face a scattered legal landscape. Therefore, to stand a chance that their judgment will be enforced, those engaging in international litigation have to invest resources, time and often external expertise to prepare a robust litigation strategy. This complexity, as well as the associated costs and legal uncertainty, are deterring factors which may cause businesses and citizens either to avoid court litigation and seek other forms of dispute resolution, give up on pursuing their claims, or decide not to engage in international dealings altogether. The HCCH 2019 Judgments Convention could enhance access to justice for businesses and individuals through creating a system that facilitates the recognition and enforcement of foreign judgments wherever the judgment debtor happens to have assets, thereby promoting international trade and investment. More specifically, the HCCH 2019 Judgments Convention would increase legal certainty and predictability of international litigation and will likely reduce costs and length of proceedings. In fact, it was estimated in the context of the impact assessment study that EU accession to the HCCH 2019 Judgments Convention could result in a decrease in costs for the recognition and enforcement of judgments in non-EU countries amounting to 10 to 20 per cent.17 In addition, it was estimated that the average length of recognition and enforcement proceedings would be reduced on average by three to six months.18 However, both the costs and length of recognition and enforcement proceedings vary greatly depending on the country in question.19 For instance, some EU Member States and non-EU countries20 currently accept foreign judgments only where reciprocity is established, ie, where it is established that the State of origin of a judgment would in the same circumstances also recognise and enforce a judgment from the requested State. In the absence of any bilateral treaty on the recognition and enforcement of judgments, reciprocity might need to be verified factually by proving that judgments from the requested country have already been accepted in the State of origin of the judgment. This may require a costly and lengthy fact-finding procedure requiring expert support. Because of the expected increase in legal certainty, predictability and the reduced costs and length of proceedings in international litigation to be brought about by the HCCH 2019 Judgments

17 The costs expected to be saved are for instance the costs for the preparation of litigation strategy or other costs, such as costs incurred due to lengthier proceedings, costs for re-litigation, fees for expert opinions or costs of security, bond, or deposits in cases where enforcement is initiated by a foreign national. 18 The Convention may in particular shorten the length of the proceedings for the recognition and enforcement of foreign judgments by eliminating the need to prove reciprocity or by reducing the occurrence of re-litigation. 19 In the context of the impact assessment, impacts with respect to all EU Member States except Denmark were considered, as well as impacts with respect to the following non-EU countries: Australia, Argentina, Brazil, China, Japan, South Korea and the United States. This assessment showed that the average costs for the recognition and enforcement proceedings differ vastly depending on the country where the recognition and enforcement are sought, on the value of the dispute and the complexity of the proceedings and the existence of other costs (eg, travel costs, translation costs and expert opinions). Costs for the recognition and enforcement proceedings in EU Member States range from free of charge, through some dozens of euros (eg, in Belgium, Bulgaria and Poland) to over a few hundred euros (in Greece). The difference in costs is even more considerable with respect to the above non-EU countries – ranging from some dozens of euros in Brazil and China to hundreds of euros in the United States and Australia. For details regarding the methodology of these estimations, see the Commission’s Impact Assessment Report, SWD(2021) 192 final. 20 For instance, China (see Zheng Tang, ch 14 in this volume), Japan or South Korea.

150  Andreas Stein and Lenka Vysoka Convention, the Convention has the potential to encourage businesses and individuals to pursue the claims that they currently do not pursue because of concerns regarding their enforceability. As a general consequence, it is expected that the HCCH 2019 Judgments Convention would encourage more parties to engage in international dealings, thereby also boosting the volume of cross-border trade and investment and consequently, the number of judgments circulating globally. Considering the positive influence that the Convention may have, if widely adopted, on the international circulation of judgments, it is not surprising that the consultations conducted in the context of the Commission’s assessment as to whether the EU should accede to the HCCH 2019 Judgments Convention showed wide support for accession. An overwhelming majority of consulted stakeholders (legal professionals, businesses, academics, professional organisations of lawyers and of bailiffs, etc) and national authorities clearly advocated the EU’s accession to the HCCH 2019 Judgments Convention. Given the improvements to the current system of international circulation of judgments that the Convention promises to bring about and the positive feedback by a vast majority of consulted stakeholders, it was concluded that the EU should accede to the HCCH 2019 Judgments Convention.

V.  Declarations under Article 18 of the Convention Considered by the EU In the context of the impact assessment, the Commission assessed not only whether the EU should accede to the HCCH 2019 Judgments Convention but also whether it should do so while making any declarations. The Convention allows several types of declaration that Contracting Parties can make when acceding to the Convention or at any time thereafter. Declarations under Article 18 and 19 allow that a Contracting Party to the Convention may disapply the Convention with respect to certain judgments, and thereby extend the list of judgments already excluded from the scope of the Convention by its Article 2(1). If a Contracting Party makes a declaration to the effect of leaving out some judgments from their circulation under the Convention, such a declaration has a twofold effect: the country in question will not have to enforce such foreign judgments and equally, on the basis of the principle of reciprocity, the judgments given by courts in that country on these specific matters will not circulate. Since these declarations limit the scope of the Convention, the Convention provides that they should be made only where a Contracting Party has a strong interest in not applying the Convention to a specific matter21 and that they should be no broader than necessary.22 When considering possible EU accession to the HCCH 2019 Judgments Convention, the Commission assessed the desirability of making several declarations either under Article 18 (excluding from the scope of application of the Convention certain specific subject matters) or under Article 19 (excluding judgments pertaining to a State). In this process, the European Commission followed the principle that a declaration should only be made where it is deemed strictly necessary. In case the practical operation of the Convention would warrant additional



21 Art

18(1) of the HCCH 2019 Judgments Convention. 18(1) and 19(1) of the HCCH 2019 Judgments Convention.

22 Arts

European Union  151 declarations, these declarations could still be made at a later stage. In general, the HCCH 2019 Judgments Convention reflects in most cases the EU’s policy objectives. Therefore, the more judgments are excluded from the scope of the Convention by means of a declaration, the less added value the Convention would have as compared with the current status quo. Furthermore, many Member States currently have more liberal systems for the acceptance of foreign judgments as compared with most non-EU countries considered. It is thus in the EU’s general interest that the Convention applies as widely as possible in order to improve the acceptance of European judgments in non-EU-countries. Moreover, the more declarations made, the more complex the legal framework of the Convention becomes for legal practitioners, parties to a dispute and for national courts. Against that background, it was taken as the starting point that the EU should not exclude judgments from circulation under the Convention unless the HCCH 2019 Judgments Convention conflicted with the internal EU acquis (the Brussels Ia Regulation) or, more generally speaking, unless the Convention adopted rules for the circulation of such judgments that are structurally incompatible with the policy existing for the circulation of judgments in the Union. For all practical purposes, the HCCH 2019 Judgments Convention and the Brussels Ia Regulation have a different territorial scope of application. In principle, the Brussels Ia Regulation applies to the recognition and enforcement of civil and commercial judgments between the EU Member States and the HCCH 2019 Judgments Convention applies between its Contracting Parties. As a result of the specific provisions of the HCCH 2019 Judgments Convention concerning the relationship with other international instruments,23 the Convention would affect neither the application of the internal EU rules on the recognition and enforcement of judgments among EU Member States, nor the application of the Lugano Convention or of other bilateral agreements that Member States may have with third countries.24 There is thus no direct overlap between the Convention and the EU acquis on the recognition and enforcement of foreign judgments. Nonetheless, even though there may be no direct conflicts, the Commission considered whether the EU should make a declaration to exclude certain matters from the scope of application of the Convention where a discrepancy or contradiction reflects significant policy differences, or more generally where the Convention does not mirror the jurisdictional rules that are commonplace in the EU. In other words, it was considered whether judgments from non-EU countries should be recognised and enforced in the EU under the Convention where jurisdiction was based on a different ground than what is considered acceptable within the EU. This consideration is pertinent in particular when it comes to instances where the Brussels Ia Regulation grants exclusive jurisdiction. In this respect, the Impact Assessment report analysed whether the EU should make any of the following declarations under Article 18 of the Convention: a declaration excluding consumer matters, a declaration excluding employment matters, a declaration excluding insurance matters or a declaration excluding commercial leases (tenancies) of immovable property situated in the EU. Moreover, the Impact Assessment report also considered whether the EU should make a declaration under Article 19 excluding judgments pertaining to a State. The Commission eventually chose to propose a declaration only on commercial tenancies (leases) of immovable property situated in the EU. This was also the only declaration the EU made when acceding to the Convention in 2022. 23 See the disconnection clause in Art 23(4) of the HCCH 2019 Judgments Convention ensuring that the Convention does not conflict with the internal rules of an REIO and Art 23(2) ensuring that the Convention does not conflict with a treaty that was concluded before the Convention. 24 See Art 23(3) and (4) of the HCCH 2019 Judgments Convention.

152  Andreas Stein and Lenka Vysoka

A.  Declaration on Tenancies (Leases) of Immovable Property Situated in the EU In some disputes concerning immovable property, the HCCH 2019 Judgments Convention recognises that the courts in the State where such immovable property is located should have exclusive jurisdiction to rule on the matter. This concerns judgments that ruled on rights in rem in immovable property. The obligation to recognise and enforce judgments then only materialises in cases where the judgment was given by a court having such exclusive jurisdiction pursuant to Article 6 of the Convention. Importantly, this rule does not only apply under the Convention’s regime. As expressly stipulated in Article 15 in the form of an exception to the general principle laid down in that provision, it must also be respected in national law. As a result, national law cannot grant recognition and enforcement to judgments handed down on such matters on any other jurisdictional basis. However, this special regime of outright exclusive jurisdiction fully protected by the Convention does not in principle extend to tenancies of immovable property. According to the definition in paragraph 189 of Garcimartín and Saumier’s, Explanatory Report on the 2019 HCCH Judgments Convention, ‘tenancy’ is a legal relationship arising from an agreement under which one party undertakes to provide the other with a temporary right of use of an immovable property, or part of it, in exchange for rent. In contrast to rights in rem in immovable property, to which countries typically afford distinctive protection in their private international law, the negotiations of the HCCH 2019 Judgments Convention showed that several countries do not afford any special protection to tenancies – either because they treat them as simple contracts or for other reasons.25 On the other hand, many legal systems do contain specific substantive and conflict of laws rules aimed at the protection of tenants.26 The particularities of these protective regimes vary greatly even in Europe, let alone around the globe. While most countries have tenancy laws, which provide specific protection only to leases for residential purposes, some countries like France have a special protective regime even for other tenants.27 The protective rules are often of a mandatory nature and best interpreted by the court of the situs (the place where the property is situated). Therefore, countries that grant specific protection to tenancies under national law often extend this protection even to the field of private international law, to safeguard public interest.28 They often subject tenancies to distinctive choice of law rules, and superimpose overriding mandatory provisions that apply regardless of the applicable law. They also often grant exclusive jurisdiction over tenancies located on their territory to their

25 This refers particularly to the common law countries that often consider tenancies as in rem rights that have erga omnes effects, and not as in personam rights with special legislative protection as is the case in many civil law countries. In common law, if the lease does not provide exclusive control over the land leased, a simple contractual obligation was created (such as a licence), regardless of the name in the contract. See R Stevens, ‘Party Autonomy and Property Rights’ in R Westrik and J van der Weide (eds), Party Autonomy in International Property Law, Vol 1 (Sellier European Law Publishers 2011) 84. 26 These rules may include specific requirements as to the form of the contract, control regimes for the initial level and increases of the rent, deposit requirements, reasons for tenant eviction and eviction notification requirements, duration of the contract, standard-terms control, pre-emption rights or specific ways of dispute resolution (eg, conciliation). For a detailed analysis, see C Schmid (ed), Tenancy Law and Housing Policy in Europe: Towards Regulatory Equilibrium (Edward Elgar 2018). 27 See Art L 145 (Chapitre V: Du bail commercial) of the French Code de commerce, as amended. 28 eg, in Germany, the rights of a tenant to live in a rented apartment have been classified by the Federal Constitutional Court as ‘property’ within the meaning of Art 14(1) of the German Constitution (BVerfGE 89,1 (Besitzrecht des Mieters); Judgment of 18 October 1993 I BvR 1335/91 1994, Neue Justiz 25). Art 29a of the Zivilprozessordnung (ZPO) then lays down exclusive jurisdictional grounds for the lease of immovable assets (and thereby also grounds for recognition – §328(1)(1) ZPO a contrario – and for enforcement – §723(2)(2) ZPO).

European Union  153 courts, and consequently refuse the recognition of judgments given elsewhere concerning tenancies of immovable property on their territory. Similarly to many national legal systems that envisage specific rules for judgments concerning tenancies of immovable property, the Brussels Ia Regulation also imposes a distinctive jurisdictional regime within the EU on tenancies of immovable property.29 In disputes that have as their subject matter tenancies that are longer than six months, Article 24 of the Brussels Ia Regulation affords exclusive jurisdiction only to the EU courts in the Member State where the immovable property is located and bars any other fora from exercising jurisdiction.30 These matters can thus be adjudicated only by the courts in the Member State where the property is situated. In the same vein, such judgments can only be recognised and enforced if they were given by the court of situs. Where a judgment has been issued in violation of the exclusive jurisdiction of Article 24, the Regulation also includes a refusal ground in Article 45. According to Article 45(1)(e)(ii) of the Brussels Ia Regulation, judgments given in other Member States in violation of the jurisdiction rules in Article 24 of the Regulation are excluded from recognition and enforcement if the party against whom recognition or enforcement is sought raises this matter.31 Article 24 of the Brussels Ia Regulation applies only if the disputed rights over the immovable property are the primary object of the proceedings, rather than an incidental question.32 The scope of the exclusive jurisdiction for tenancies is also limited by an exception for tenancies for temporary private use, ie, for a use for a maximum period of six consecutive months. If the tenancy is no longer than six months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State. This exception was added in 199033 to avoid the situations where a party to a short-term holiday rental would be obliged to litigate a dispute about their rental payment exclusively in the State in which the property is situated. Finally, for the exclusive jurisdiction of Article 24 of the Brussels Ia Regulation to apply, the immovable property must also be located in one of the EU Member States. This follows from the wording of the Article 24 referring to the ‘courts of a Member State’.34 29 The term ‘tenancies’ under the Brussels Ia Regulation is to be construed autonomously. Nevertheless, to date the CJEU has not given a comprehensive clarification of the term. As jurisdiction concerning tenancies constitutes an exception to the general rule of jurisdiction at the place of defendant’s domicile, the term ‘tenancy’ should be understood narrowly. In that regard, see C-73/04, Klein, ECLI:EU:C:2005:607 affirming that restrictive interpretation is necessary since the Art 24 of the Regulation deprives the parties of the choice of forum which would otherwise be theirs and, in certain cases, results in them being brought before a court which is not that of the domicile of any of them. 30 See Art 27 of the Regulation. 31 As for the reasoning behind this exclusive jurisdiction, see Report by Mr P Jenard on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, No C-59/35: ‘The adoption of this provision was dictated by the fact that tenancies of immovable property are usually governed by special legislation which, in view of its complexity, should preferably be applied only by the courts of the country in which it is in force. Moreover, several States provide for exclusive jurisdiction in such proceedings, which is usually conferred on special tribunals’. 32 See para 163 of the Report by Professor Mr P Schlosser on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice [1979] OJ C 59/71. 33 Following the accession of Portugal and Spain to the EU, the Article of the Brussels Convention was amended to include this exception to the exclusive jurisdiction, thereby overruling the effects of C-241/83, Rösler v Rottwinkel, ECLI:EU:C:1985:6. In Rösler v Rottwinkel, the CJEU found that disputes concerning all lettings of immovable property, even for a short term, and even where they relate only to the use and occupation of a holiday home, fall under the exclusive jurisdiction of forum rei sitae. This resulted in a vast influx of cases where litigants both domiciled in the same Member State had to litigate abroad cases of even very short-term accommodation, most often for holiday apartments situated in another Member State. 34 See D Paulus, ‘Art 24’ in D Paulus, E Peiffer and M Peiffer (eds), Europäische Gerichtsstands- und Vollstreckungsverordnung (Brüssel Ia): Kommentar zur Verordnung (EU) Nr 1215/2012 (EuGVVO) (CH Beck 2017) 431, para 10; T Rauscher,

154  Andreas Stein and Lenka Vysoka While the Brussels Ia Regulation grants exclusive jurisdiction to the courts in the Member State where immovable property is located with respect to both residential and commercial tenancies (with the above-described exception of short-term rentals for private use), the HCCH 2019 Judgments Convention treats judgments concerning tenancies of immovable property differently depending on their purpose. Until the beginning of the Twenty-Second Diplomatic Session of the HCCH, the provisions in the draft Convention closely resembled those in the Brussels Ia Regulation.35 In compliance with Article 6 of the draft Convention, in cases where the national law of the State where a leased immovable property is located granted exclusive jurisdiction to its courts, judgments on tenancies of that immovable property could only be recognised and enforced if they were given by the court in the Member State where the property is located. In this respect, the draft Convention went as far as precluding the recognition and enforcement even under national law, as the final HCCH 2019 Judgments Convention does for rights in rem in immovable property (Article 6). This regime for tenancies in Article 6(c) of the draft Convention however only covered tenancies of immovable property for a period of more than six months. Regarding other tenancies (ie, for up to six months), the draft Convention included a specific filter in Article 5. Under this filter, the judgments on tenancies that did not qualify for special protection under Article 6 could be recognised either if they came from the place where the property was situated, or if they fulfilled any other jurisdictional filter in Article 5(1) of the draft Convention. It was therefore not required to hand down judgments in such cases only in the country in which the leased property was located. However, this solution, although in line with the policy of the Brussels Ia Regulation, did not reflect the approach taken by many other jurisdictions to these judgments. This discrepancy resulted in the reopening of this issue at the Diplomatic Session. It proved to be a difficult endeavour to find a common approach to these judgments, in an environment of structural differences and national sensitivities often underpinned in national constitutional law. Eventually, as a compromise, a different approach was chosen for tenancies of immovable property in the final version of the HCCH 2019 Judgments Convention.36 First, if the law applicable to the lease of immovable property gives erga omnes effects to that right, such as in common law,37 the judgment concerning this lease should be regarded as an in rem judgment and will be covered by the exclusive protection of Article 6. On the other hand, what used to be draft Article 6(c), the exclusive basis for recognition and enforcement of judgments on in personam tenancies of immovable property for a period of more than six months, lost its exclusive protection. In personam tenancies of immovable property were distinguished as either ‘residential’, or all other (ie, non-residential) without a distinction as to their duration.38 Judgments that ruled on a residential lease of immovable property can

Europäisches Zivilprozess- und Kollisionsrecht EuZPR/EuIPIR, Kommentar, Vol I (Otto Schmidt 2020) Art 24, para 5 et seq for a discussion that Art 24 cannot be used in such a case analogously, also due to the imperative of the restrictive interpretation of Art 24, since the Article constitutes an exception to the general rule. 35 The Convention sets out the exclusive basis for recognition and enforcement both for rights in rem in immovable property and tenancies longer than six months (See Art 6(b) and 6(c) of the May 2018 Preliminary Judgments Convention, HCCH Work Doc No 262 REV of 2018). 36 See Pietro Franzina, ch 3, section IV, in this volume. 37 See above (n 25). 38 ‘Residential lease’ refers to a contract for the use of living accommodation for personal, family or household purposes in exchange for rent. As is however pointed out in the Explanatory Report, even though the Convention commands uniform interpretation, it might be justified not to apply this protective regime to temporary vacation rentals. This is in line with a usual distinction in the majority of States that have exclusive jurisdiction on tenancies. See F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) fn 151.

European Union  155 be enforced under the Convention only if they were given by a court of a State in which the residential tenancy was located (new Article 5(3) of the HCCH 2019 Judgments Convention). The Convention allows (and in the same vein prescribes) the recognition of judgments ruling on residential tenancies only when they comply with Article 5(3), ie, if they were given by a court of a State in which the residential tenancy was located. The application of any other jurisdictional filters in Article 5(1) to residential tenancies is excluded. However, unless tenancies are qualified as in rem rights (Article 6), the HCCH 2019 Judgments Convention does not limit the recognition and enforcement under national law of judgments on residential tenancies that were given in other fora than at the place where the leased immovable property is located. Unlike Article 6, it thus no longer creates an obligation to refuse the recognition under national law of judgments that do not comply with the rule in the Convention. Finally, while Article 5(3) caters for in personam residential tenancies, the remaining judgments on non-residential tenancies39 circulate either where they were given in the country in which the property is located (Article 5(1)(h)), or where they comply with any other jurisdictional filter of Article 5(1). This may include for instance the State of the habitual residence, the principal place of business or the place of a branch, agency or other establishment of the defendant (Article 5(1) (a), (b) or (d)). When it comes to residential tenancies, the Convention grants exclusive jurisdiction at the place where the immovable property is situated. It could thus be concluded that the level of protection for residential tenancies is comparable between the Convention and the Brussels Ia Regulation. This includes all residential tenancies, irrespective of their length.40 By contrast, different from Article 24(1) of the Brussels Ia Regulation, indirect jurisdictional grounds in the Convention in matters of non-residential leases of immovable property are not exclusive under the HCCH 2019 Judgments Convention. The fact that the Convention does not afford exclusive jurisdiction to the State where the immovable property is located when it comes to non-residential tenancies is in clear contradiction to the policy objective sought by the EU legislator in the Brussels Ia Regulation – ie, the policy objective to attribute exclusive jurisdiction to courts in the EU for all disputes relating to tenancies concerning immovable property located in the EU. Therefore, without a declaration under the Convention Member States would be obliged to recognise and enforce third-country judgments on commercial leases of immovable property that would not be accepted for recognition and enforcement if they were given by the courts of another EU Member State. Consequently, in the instances where the rules in the Brussels Ia Regulation and the HCCH 2019 Judgments Convention differ, the European Commission proposed the following declaration under Article 18 of the Convention excluding from the scope of the Convention the judgments on commercial tenancies of immovable property: ‘The European Union hereby declares under Article 18 of the Convention that it will not apply the Convention to commercial leases (tenancies) of immovable property situated in the European Union’.41

39 This also covers disputes on the existence or interpretation of the tenancy agreement, eviction, compensation for damages caused by the tenant, or the recovery of rent (Explanatory Report (n 38) para 190). 40 Unlike Art 24(1) para 2 of the Brussels Ia Regulation, the HCCH 2019 Judgments Convention does not distinguish between residential tenancies based on their duration (tenancies longer and shorter than six months). This difference however would not be of great relevance in practice since the Regulation has specific jurisdictional rules on short-term tenancies only where the tenant and landlord are domiciled in the same country. It is unlikely that such a scenario would come up for EU parties under the Convention regularly. Moreover, this jurisdictional ground is only an alternative to the general one in Art 24(1) para 1 (see the wording ‘may’). 41 See Proposal for a Council Decision on the accession by the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, COM(2021) 388 final.

156  Andreas Stein and Lenka Vysoka Under this declaration, the EU would avoid the obligation to recognise and enforce thirdcountry judgments on commercial tenancies of immovable property situated in the Union. The Commission decided to make a declaration only as broad as necessary in order to ensure the conformity of the Convention regime with the EU acquis. Notably, the geographical criterion ensures that the specific subject matter that is excluded from circulation under the Convention is not only precisely defined but also as narrow as possible.42 Since all Article 18 declarations that Contracting Parties make have reciprocal effects,43 other Contracting Parties to the Convention will not be obliged under the Convention to recognise judgments from the EU concerning commercial tenancies of immovable property located in their territory. Notably, such a limited declaration would also not affect a significant portion of judgments otherwise circulating under the Convention. It is expected that there will be very few judgments given on commercial tenancies of immovable property located in the EU given by third-country courts. The opinion of stakeholders differed as regards the desirability of this declaration on commercial tenancies of immovable property primarily due to the small number of judgments on the matter and the resulting limited practical impact of such a declaration. Most of the interviewed legal professionals and stakeholders favoured making such a declaration, while only 12 per cent of respondents to the online survey had the same preference. Several national authorities of EU Member States indicated their potential interest in such a declaration in the consultation activities conducted as a part of the impact assessment. This interest in making such a declaration was later confirmed during negotiations in the Council of the European Union where Member States supported the decision that the EU would make such a declaration while acceding to the HCCH 2019 Judgments Convention. However, negotiations with the Member States resulted in modifying the wording of the declaration initially proposed by the Commission – instead of ‘commercial’ leases (tenancies) of immovable property, it was agreed to make a declaration excluding from the scope of the Convention ‘non-residential’ leases (tenancies) of immovable property. In this context, potential borderline examples of tenancies that could raise questions as to their characterisation, such as rural tenancies or tenancies of garages, were considered. Since the intention is that the declaration should cover all tenancies that are not ‘residential’ under the Convention, it was concluded that ‘non-residential’ would be more suitable wording than ‘commercial’, avoiding characterisation problems as well as the potential interpretation that there could be tenancies that are neither residential nor commercial.

B.  Other Declarations Initially Considered While the EU, in line with the proposal by the Commission, made only the declaration on nonresidential leases (tenancies) of immovable property situated in the EU, this declaration was not the only one originally contemplated. In the process of assessing the impacts of a possible EU accession to the Convention, the Commission also considered whether the EU should make other declarations – either a

42 cf with a draft declaration on insurance matters considered when the EU was joining the HCCH 2005 Choice of Court Convention: T Harley, Civil Jurisdiction and Judgments in Europe: The Brussels I Regulation, the Lugano Convention, and the Hague Choice of Court Convention (Oxford Private International Law Series 2017) 72, para 5.49. 43 In accordance with para 2 of Art 18, if a Contracting Party excludes certain specific matters from the application of the Convention, it will not have to accept foreign judgments ruling on these matters, but also its own judgments thereon will not circulate.

European Union  157 declaration under Article 18 that would protect the weaker parties of civil and commercial contracts (ie, declarations on consumer, employment and/or insurance matters) and/or under Article 19 that would exclude from the scope judgments pertaining to a State. It will be briefly explained below why these declarations were considered and why they were not eventually proposed.

i.  Declarations under Article 18 to Protect Weaker Parties: Consumer and Employment Matters The EU’s policy objective to protect weaker parties in certain transactions is reflected, within the Brussels Ia Regulation, in specific jurisdiction rules. Such rules are provided in Chapter II, Sections 3–5 of the Brussels Ia Regulation for consumers, employees and the weaker parties in insurance contracts. Recognition and enforcement may be refused where judgments were made by a court of a Member State, which lacked jurisdiction under the aforementioned provisions.44 By contrast, the HCCH 2019 Judgments Convention does not provide any special protection for the weaker party in insurance matters and while it provides protection for consumers and employees (Article 5(2) of the Convention), these protective rules differ somewhat from those included in the Brussels Ia Regulation. First, declarations under Article 18 of the Convention excluding consumer and/or employment matters were considered. In consumer and employment matters, both the HCCH 2019 Judgments Convention and the Brussels Ia Regulation provide special protection for the weaker parties. As a rule, the weaker party can be only sued in the court of the place where it is domiciled under both instruments. Moreover, the possibility to conclude choice of court agreements in these matters is significantly limited. For instance, under Article 5(2) of the HCCH 2019 Judgments Convention, if the jurisdiction of the court of origin of the judgment was based on the consent of the weaker party, the recognition and enforcement of the resulting judgment is only granted if the consent was given expressly in the course of the proceedings and addressed to the court, orally or in writing, thus excluding prior choice of court agreements as well as tacit consent during the proceedings by virtue of arguing on the merits. The Brussels Ia Regulation contains similar rules in its Articles 19 and 23. It is clear from the above that the Convention and the Brussels Ia Regulation have several commonalities in how they protect consumers and employees in cross-border litigation. However, there is one key difference. Unlike the Brussels Ia Regulation, Article 5 of the HCCH 2019 Judgments Convention does not offer the privileged forum of the consumer’s domicile or the employee’s habitual workplace where the weaker party is the plaintiff.45 If a consumer or employee brings a case, the resulting judgment will only be recognised and enforced under the Convention where the court of origin based its jurisdiction on one of the grounds in Article 5(1). Forum actoris in consumer and employment matters is not one of these grounds. The place where the consumer plaintiff is domiciled or the employee plaintiff habitually carries out his work are therefore not acknowledged as valid grounds for jurisdiction under Article 5 of the HCCH 2019 Judgments Convention. Of course, judgments that comply with any other indirect jurisdictional grounds in the Convention would have to be recognised and enforced under the Convention. Remarkably, this



44 See 45 See

Art 45(1)(e)(i) of the Brussels Ia Regulation. Arts 18(1) and 21(1)(b) of the Brussels Ia Regulation.

158  Andreas Stein and Lenka Vysoka includes judgments given in the place of performance of a contractual obligation (Article 5(1)(g) of the Convention). Since the place of performance would very often be the country where a consumer resides, the consumer would be able to sue at a court in a State which is also its habitual residence. The same logic would also apply to employment matters. This could thus partially substitute a forum actoris jurisdiction. Aside from the difference in the treatment of consumers and employees when they are acting as plaintiffs, there are several other differences between the HCCH 2019 Judgments Convention and the Brussels Ia Regulation. For instance, the Convention also does not provide special protection to consumers and employees in tort matters. A judgment which ruled on a non-contractual obligation arising from damage to or loss of tangible property is eligible for recognition and enforcement under the HCCH 2019 Judgments Convention if brought against a consumer or an employee in the State where the harm occurred (Article 5(1)(j) of the Convention).46 Under the CJEU’s case law on the Brussels Ia Regulation, in order to protect the weaker party in consumer and employment contracts it has been considered in the interests of the proper administration of justice to bring before one and the same court, namely the court competent for contractual matters, all of the difficulties that are likely to arise from such contracts, including non-contractual claims that are indissociably linked to that contract.47 As a result, certain non-contractual claims could only be brought by the other party in the place where the consumer or employee is domiciled.48 The HCCH 2019 Judgments Convention would not appear to provide the basis for a similar ‘absorption’ of non-contractual claims by the indirect head of jurisdiction for contractual claims. However, the ground for jurisdiction under the Convention for non-contractual obligations has a restricted reach in any event because it applies only to death, physical injury, damage to or loss of tangible property at the place where the act or omission occurred. When it comes to choice of court agreements, the HCCH 2019 Judgments Convention protection of consumers and employees is even stronger than Article 19 of the Brussels Ia Regulation. Since Article 5(2)(b) of the HCCH 2019 Judgments Convention excludes Article 5 (1)(m)49 completely from the application if the action is brought against a consumer or an employee, such an agreement is not a valid basis of jurisdiction even if it is concluded after the dispute has arisen or if it allows the consumer to bring proceedings in courts other than those indicated in Article 5(1). On the other hand, Article 19 of the Brussels Ia Regulation considers a choice of court agreement in these two instances acceptable. The Convention also goes beyond the protection afforded to the consumer or employee in the Brussels Ia Regulation in other respects. For example, arguing by the defendant on the merits before the court of origin without contesting jurisdiction is not a valid ground of jurisdiction in consumer cases under the HCCH 2019 Judgments Convention.50 Under the Brussels Ia Regulation, the CJEU has adopted a more nuanced view.51 46 The same applies for the situations where an omission directly causing harm occurred. 47 See the CJEU decision of 2 April 2020 C-500/18, Reliantco Investments, ECLI:EU:C:2020:264 in relation to the alleged breach of pre-contractual duties to inform about the risks of online investments which the Court held to be indissociably linked to the contract. 48 It should be noted that the CJEU decision relates to a court case brought by a consumer but the same logic is likely to apply in cases brought against the consumer. 49 Art 5(1)(m) of the Convention only covers non-exclusive choice of court agreements in order to prevent any overlap with the HCCH 2005 Choice of Court Convention; Art 2(1) of that Convention excludes consumer and employment matters from its scope. 50 The application of Art 5(1)(f) of the Convention is excluded in consumer matters by Art 5(2) of the Convention. 51 See the CJEU judgment C-111/09, Bilas (Česká podnikatelská pojišťovna as, Vienna Insurance Group v Michal Bilas, ECLI:EU:C:2010:290) that ruled that court had jurisdiction over a weaker party where the defendant entered an

European Union  159 The concept of ‘consumer’ itself may also not be construed identically under the HCCH 2019 Judgments Convention and the Brussels Ia Regulation. In Article 5(2) of the HCCH 2019 Judgments Convention, a consumer is defined as a ‘natural person acting primarily for personal, family or household purposes’. By contrast, under the Brussels Ia Regulation, the CJEU has developed a rather broad autonomous concept of ‘consumer’.52 It is thus questionable whether the concept of ‘consumer’ in the HCCH 2019 Judgments Convention will be construed in such a wide manner. A difference in the interpretation of the term ‘consumer’ between both instruments is likely unavoidable but it might lead to some misconceptions among legal professionals when applying the HCCH 2019 Judgments Convention. The HCCH 2019 Judgments Convention, unlike the Brussels Ia Regulation,53 also does not specify that the other party to a consumer contract must pursue commercial or professional activities. As the Explanatory Report to the Convention points out,54 it would have to be determined by courts applying the Convention whether consumer-to-consumer (C2C) contracts are included under Article 5(2). As far as the protection of weaker parties in employment matters is concerned, in addition to the above-mentioned considerations that apply to both consumer and employment matters, the following specificities have to be taken into account: According to Article 45(1)(e)(i) of the Brussels Ia Regulation, judgments made in proceedings brought by the employee have to be recognised and enforced in the other Member States if jurisdiction is based on: • The place where or from where the employee habitually carries out his work or the last place where he did so; or • if the employee does not or did not habitually carry out his work in one country, the place where the business which engaged the employee is or was situated. The HCCH 2019 Judgments Convention does not include these two specific indirect jurisdiction grounds for employment matters. However, it should be noted that these places often coincide with other indirect grounds of jurisdiction in the HCCH 2019 Judgments Convention – for example, with the place of the employer’s seat or habitual residence of the employee. In conclusion, the Convention provides good protection for consumers and employees in most cases. Moreover, it is unlikely that the differences listed above would impact a significant number of judgments. According to the stakeholder interviews, the HCCH 2019 Judgments Convention is considered mostly as a B2B instrument with only limited application to consumer and employment matters. Where the Convention does apply to consumer and employment matters, the instances of discrepancies between the Brussels Ia Regulation and the HCCH 2019 Judgments Convention are limited. On the contrary, should the EU enter a declaration excluding consumer and/or employment matters from the scope of the Convention altogether, consumers having their habitual residence

appearance and did not contest that court’s jurisdiction (since entering an appearance in that way amounts to a tacit prorogation of jurisdiction). However, the Brussels Ia Regulation provides protection in such scenarios in a different fashion; according to its Art 26(2), where the defendant in consumer or employment matters is the weaker party the court can assume such a tacit prorogation only after informing the defendant about the right to contest jurisdiction and about the consequences of entering an appearance. 52 For instance, it has been extended to investment contracts worth more than €50 million. See the CJEU judgment C-208/18, Petruchová (Jana Petruchová v FIBO Group Holdings Limited, ECLI:EU:C:2019:825). 53 See, in particular, Art 17(1)(c) of the Brussels Ia Regulation. 54 Explanatory Report (n 38) para 222.

160  Andreas Stein and Lenka Vysoka in the EU would not be able to benefit from the recognition and enforcement of judgments in their favour issued by EU courts in third countries even where they would be eligible under the Convention. Even though the fashion, in which protection for the weaker parties is provided, differs between both instruments, it can be concluded that a sufficient level of protection is guaranteed where it is needed as the Convention is based on the logic that consumers and employees should be sued at the place of their habitual residence (and not elsewhere). Given this degree of protection and the desire to include consumer and employment contracts in the scope of the Convention so that the parties to these contracts can benefit from the Convention, no declaration concerning consumer and employment matters has been proposed by the Commission.

ii.  Declarations under Article 18 to Protect Weaker Parties: Insurance Matters Second, a potential declaration under Article 18 of the Convention excluding insurance matters was considered. The weaker party in insurance matters is protected in the EU acquis just as consumers and employees are. In EU law, this protection covers the policyholder, the insured and the beneficiary even if they are not factually a weaker party (eg, even in the case of large corporations as policyholders). As compared with the rules in the Brussels Ia Regulation, there is no such specific protection under the Convention. Whereas the HCCH 2019 Judgments Convention limits the available grounds for indirect jurisdiction in consumer and employment matters only to specific jurisdictional filters, all jurisdictional filters apply without limitation in matters of insurance. A possible argument for making a declaration on insurance matters could be that the EU made a similar declaration when acceding to the HCCH 2005 Choice of Court Convention, the complementary instrument to the HCCH 2019 Judgments Convention, whereby it excluded the application of that Convention to some judgments concerning insurance matters.55 However, the conflict between the HCCH 2005 Choice of Court Convention and the Brussels Ia Regulation was not limited only to policy considerations. There was also a legal overlap between the two instruments. The HCCH 2005 Choice of Court Convention provides in its Article 26(6) that it shall not affect the application of the rules of an REIO that is a Party to the Convention (such as EU law) only with regard to litigation where none of the parties is resident in a Contracting State that is not a Member State of that Organisation. Therefore, where one of the parties to a dispute in insurance matters has its residence in the EU and other party has its residence in another Contracting Party, the Convention would apply. However, the Brussels Ia Regulation may apply in such cases as well, for example, when the insured is domiciled in the EU and the insurance company is in a third State but has its branch, agency or other establishment in the EU.56 Since the Brussels Ia Regulation provides different rules for protecting the weaker parties by limiting the possibility to choose a court, the rules applicable under the HCCH 2005 Choice of Court Convention, which include direct rules of jurisdiction, and under the Brussels Ia Regulation 55 When it comes to insurance matters, the EU applies the HCCH 2005 Choice of Court Convention only in cases specifically enumerated in the declaration. To see the declaration, consult: www.hcch.net/en/instruments/conventions/ status-table/notifications/?csid=1044&disp=resdn. With a view to ensure that the declaration is no broader than necessary in line with Art 21(1) of the HCCH 2005 Choice of Court Convention, the declaration is rather long and unwieldy and difficult to understand and interpret, in particular for courts in non-EU Contracting Parties that are not familiar with the intricacies of EU law. That was another consideration possibly cautioning against the repetition of such a declaration. 56 cf Art 11(2) of the Brussels Ia Regulation stipulating that ‘an insurer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State’.

European Union  161 may contradict one another. Therefore, to prevent discrepancies between the two instruments, a declaration was made when the EU acceded to the HCCH 2005 Choice of Court Convention. By contrast, the HCCH 2019 Judgments Convention does not include direct rules of jurisdiction. Therefore, no such direct legal overlap would materialise if the EU acceded to the HCCH 2019 Judgments Convention without any declaration on insurance matters. This difference was crucial when assessing whether to make a similar declaration when acceding to the HCCH 2019 Judgments Convention. Finally, it should also be noted that the weaker parties in insurance matters enjoy special protection under Article 5(2) of the HCCH 2019 Judgments Convention if they qualify as consumers. Indeed, even though the Brussels Ia Regulation affords special protection to all insurance policyholders, the insured and beneficiaries (even if they are large corporations), the ‘real’ weak parties are often consumers.57 Since the HCCH 2019 Judgments Convention has specific indirect jurisdiction rules for consumers in Article 5(2), the lack of specific protection under the Convention in insurance matters applies only to non-consumers. Therefore, the Convention does provide protection for the ‘real’ weaker parties to the insurance contracts. It was thus concluded that no declaration should be proposed for insurance matters.

iii.  Declaration under Article 19: Judgments Pertaining to a State Article 19 of the HCCH 2019 Judgments Convention permits a Contracting State not to apply the Convention to judgments arising from proceedings involving a State or a government agency thereof, or a natural person representing that State (State), and to do so even for the cases where they acted in a civil and commercial context. In general, the HCCH 2019 Judgments Convention does not exclude judgments from its scope merely because a State was a party to the proceedings.58 By contrast, it distinguishes between those situations where the State acted in a civil or commercial context as opposed to those where it exercised governmental or sovereign powers. In the latter case, the matter falls outside the scope of ‘civil or commercial matters’59 and thus outside the scope of the HCCH 2019 Judgments Convention. On the other hand, if a State acted in a civil or commercial context, the Convention applies. However, some States wished to exclude from circulation under the Convention all judgments where a State was a party to the proceedings, even those where a State acted in civil and commercial matters.60 Article 19 allows States to make a declaration excluding the application of the Convention to judgments that arose from proceedings to which such a State was a party. This declaration could cover the State itself and a governmental agency of that State or a natural person acting for either of them. On the other hand, the declaration cannot include

57 The specific jurisdictional rules for insurance matters in the Brussels Ia Regulation originate from its earliest predecessor – the 1968 Brussels Convention. That Convention, however, did not feature specific rules protecting consumers (but only rules concerning instalment sales and loans which were later extended to a section on consumer contracts). 58 Art 2(4) of the HCCH 2019 Judgments Convention. 59 Examples of situations where the State acts outside the ‘civil and commercial’ remit are criminal, constitutional, revenue, customs or administrative matters. A key element distinguishing public law matters from civil or commercial matters is whether one of the parties is exercising governmental or sovereign powers that are not enjoyed by ordinary persons. If the action derives from the exercise of public powers – acta iure imperii (including regulatory powers or duties), the Convention does not apply. See Explanatory Report (n 38) paras 33–37. 60 Based on the arguments including the preservation of State immunities, in particular for States with a very broad or even absolute concept of State immunity, and the avoidance of interpretation difficulties with respect to whether a State party was exercising sovereign powers. See Explanatory Report (n 38) para 344.

162  Andreas Stein and Lenka Vysoka legal persons acting for the State, unless they qualify as governmental agencies. This includes legal persons, irrespective of their ownership – ie, commercial enterprises owned by the State or privately owned. In particular, the declaration cannot cover State-owned enterprises which may act on the borderline between private and public sectors.61 In any case, the declaration should be as narrow in scope as possible.62 Under the Brussels Ia Regulation, the mere fact that one of the parties might be a State or public authority does not exclude the case from the scope of the Brussels Ia Regulation – decisive is whether the party acted by virtue of its public powers (acta iure imperii). The CJEU thus makes a distinction between situations where a State made use of ‘special powers that go beyond those arising from the ordinary legal rules applicable to relationships between private individuals’ and where it did not.63 The latter scenario falls squarely within the scope of ‘civil and commercial matters’. The CJEU looks into the specific facts of each individual case to determine whether a State, a public body or anyone acting on their behalf exercised special powers that go beyond those available to private parties. There is thus no general exemption from the application of the Brussels Ia Regulation to States or governmental agencies and the Regulation applies in all cases where they acted in a civil and commercial context. Since EU law does not envisage any general exemption/immunity for States from the recognition and enforcement of foreign judgments in civil and commercial matters where a State was a party to the proceedings, the declaration under Article 19 would not sit well with the existing EU acquis. Moreover, it should be pointed out that the EU actively advocated against the inclusion of this declaration during the negotiations of the HCCH 2019 Judgments Convention. It was thus decided not to propose any declaration under Article 19 of the HCCH 2019 Judgments Convention.

VI. Outlook The EU strives to promote the Convention among other countries, including its main trading partners as an instrument that will increase predictability and access to justice in international dealings through creating a system that facilitates the recognition and enforcement of foreign judgments, thereby also promoting international trade and investment globally. The accession of the EU as a bloc of 26 Member States to the Convention on 29 August 2022 as the first Contracting Party and the upcoming entry into force of the Convention should be strong incentives encouraging other countries, including EU candidate countries and other countries in the European Neighbourhood Policy,64 to join the Convention sooner rather than later. The extent to which the HCCH 2019 Judgments Convention exploits the potential of being a game-changing instrument obviously critically depends on the number of Contracting Parties that it attracts.

61 Including these types of entities in the declaration would have meant that they could gain an unfair advantage in comparison to foreign private enterprises that operate on the same markets. It could also have led to significant imbalances between different Contracting Parties depending on the extent to which state-owned enterprises play a role in their economic systems, shielding only state-owned enterprises against recognition and enforcement under the Convention without economically equilibrated reciprocity effects where another Contracting Party does not rely substantially on state-owned enterprises. 62 The declaring State may also make a more limited declaration – eg, to exclude only judgments pertaining to certain governmental agencies. The reach of the declaration can also be further narrowed down in substance – eg, only covering certain types of remedies. 63 See, as one illustration of the rich case law, C-73/19, Movic, ECLI:EU:C:2020:568, para 62. In Movic, the CJEU also specified that neither the fact that a certain power was introduced by a law nor the pursuit of the general interest are in themselves decisive in order to conclude that the State acted in the exercise of State authority (paras 52 and 53). 64 See Ilija Rumenov, ch 10 in this volume, on Southeast European and EU Candidate Countries.

8 Perspectives from the United States and Canada GENEVIÈVE SAUMIER* AND LINDA SILBERMAN**

I. Introduction This joint contribution on Canada and the United States examines how these two States deal with cross-border recognition and enforcement of civil judgments. This collaboration made sense to the authors given that these jurisdictions have a long history of recognising each other’s judgments and exhibit similar openness to judgments from other countries. A comparative consideration of each country’s perspectives on the HCCH 2019 Judgments Convention was expected to yield interesting insights for readers from Canada and the United States, but also for those less familiar with the intricacies of recognition and enforcement law in these two countries.1 As the United States and Canada both have a federal system and share, for the most part, a common law tradition, one might think that the two countries would share similar perspectives about the Convention. But, as we will explain further, the views about the recognition and enforcement of foreign country judgments in the two countries present significant differences. The two countries do have generous and substantially similar regimes for recognising and enforcing foreign country judgments, but the concerns about the recognition and enforcement of their own judgments abroad are somewhat different. This contribution will explore those issues and conclude on a

* Peter M Laing QC Chair, Faculty of Law, McGill University. The author was a non-government member of the Canadian delegation to the Hague Conference for the 2019 Judgments Convention and is a co-author of the Explanatory Report for that Convention (see below (n 23)). The views expressed in this chapter are solely those of the author. ** Clarence D Ashley Professor of Law, New York University School of Law; Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law. 1 This Part of the book is organised by world regions. The editors of this volume originally anticipated a contribution relating to ‘North America’, understanding this to include Canada, the United States and Mexico. This expectation was based on an assumption that the regional agreements of the past decades – including the 1994 North American Free Trade Agreement (NAFTA), replaced in 2020 with the United States–Mexico-Canada Agreement (USMCA) – included provisions dealing with cross-border enforcement of civil judgments. None of these instruments deal with enforcement, however, leaving the issue to be dealt with under national law as between the three countries. The authors of this contribution, having expertise in Canadian and US law on recognition and enforcement of foreign judgments, but not on Mexican law, have focused on the law in those two jurisdictions only. For background on the Convention from a US perspective, see RA Brand, ‘Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead’ (2020) 67 Netherlands International Law Review 3; LE Teitz, ‘Another Hague Judgments Convention? Bucking the Past to Provide for the Future’ (2019) 29 Duke Journal of Comparative & International Law 491. For a Canadian perspective, albeit on an earlier version of the Convention, see J Blom, ‘The Court Jurisdiction and Proceedings Transfer Act and the Hague Conference’s Judgments and Jurisdiction Projects’ (2018) 55 Osgoode Hall Law Journal 257. For a more general overview of the Convention, see PA Nielsen, ‘The Hague 2019 Judgments Convention – from failure to success?’ (2020) 16 Journal of Private International Law 205.

164  Geneviève Saumier and Linda Silberman cautiously optimistic note on the prospects for ratification of the Convention for both countries. Even though the Convention will enter into force on 1 September 2023 as a result of ratifications by the European Union (EU) and Ukraine on 29 July 2022, patience may be the key with respect to ratifications by the United States and Canada. The chapter is structured to provide the perspective of both countries in relation to outgoing judgments (section II), incoming judgments (section III) and the treaty ratification and implementation process (section IV). In so doing, it will consider the history and current landscape in both countries and will discuss specific provisions of the HCCH 2019 Judgments Convention that may raise questions in one or both countries.

II.  Perspectives on Outgoing Judgments: The Impact of the Convention on the Recognition of US and Canadian Judgments Abroad The primary interest of the United States in having an international convention on the recognition and enforcement of foreign judgments is to ensure that US judgments are recognised and enforced abroad. Indeed, many countries have significantly more restrictive regimes on recognition and enforcement generally or are hostile to US judgments in particular.2 Because the United States has no bilateral or multilateral treaties with other countries dealing with recognition or enforcement of judgments, US judgments are often difficult to enforce abroad. Canada does not have quite the same concerns, even though it has only one bilateral convention (with the United Kingdom).3 Indeed, there is no significant reported evidence of resistance to enforcement of, or hostility to, judgments from Canada abroad.4 The incentives for signing a multilateral convention for the recognition of Canadian judgments abroad are thus less obvious than for the United States. On the other hand, for both countries the international playing field is not level since courts in both the United States and Canada liberally recognise and enforce foreign country judgments (including each other’s),5 without imposing a reciprocity requirement, while 2 For further explanation of the reasons for non-recognition of US judgments, See A Bonomi, ‘Recognition and Enforcement of US Civil Judgments in Europe: Old Problems and Recent Trends’ in A Bonomi and K Nadakavukaren Schefer (eds), US Litigation Today: Still a Threat for European Business or Just a Paper Tiger? (Publications of the Swiss Institute of Comparative Law 2018) 280–95. See also, SP Baumgartner, ‘Understanding the Obstacles to the Recognition and Enforcement of US Judgments Abroad’ (2013) 45 New York University Journal of International Law and Politics 965; SP Baumgartner, ‘How Well Do US Judgments Fare in Europe?’ (2008) 40 George Washington International Law Review 173. 3 See the 1984 Convention Between the United Kingdom of Great Britain and Northern Ireland and Canada Providing for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, 24 April 1984, 1988 Gr Brit TS No 74. For the federal implementing legislation to this convention, see Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, RSC, ch C-30 (1985) (Can) and equivalent legislation in all of the provinces. A convention was negotiated with France in 1996 but was never implemented (The Enforcement and Judgments Conventions Act, Can–Fr Rep, 10 June 1996, SM 2000, c 13 (Can). For a discussion of both conventions, see H Scott Fairley and J Archibald, ‘After the Hague: Some Thoughts on the Impact on Canadian Law of the Convention on Choice of Court Agreements’ (2006) 12 ILSA Journal of International and Comparative Law 416, 422–23. 4 But see H Scott Fairley, ‘In Search of a Level Playing Field: The Hague Project on Jurisdiction and the Recognition and Enforcement of Foreign Judgments’ in C Carmody, Y Iwasawa and S Rhodes (eds), Trilateral Perspectives on International Legal Issues: Conflict and Coherence (American Society of International Law 2003) 57. 5 Just recently in 2019, the Uniform Law Commission (in the United States) promulgated another Act that would further facilitate the enforcement of Canadian judgments in the United States. See Uniform Registration of Canadian Money Judgments Act, 13 Uniform Laws Ann (Pt II), Cumulative Annual Pocket Part (2021). As of 2022, only a few states had adopted the Act. It provides a registration process similar to the Uniform Enforcement of Foreign Judgments Act (1964), which provides for registration of sister-state judgments only. For a more detailed discussion of the Canadian

Perspectives from the US and Canada  165 many other countries are much more restrictive. This reason alone provides an incentive for ratifying a multilateral convention. The concern in the United States about recognition and enforcement of its own judgments abroad has an interesting history and in part explains why recognition and enforcement of foreign judgments within the United States has come to be based on state rather than federal law. It was not always so. In the early nineteenth century, the Supreme Court of the United States – in the case of Hilton v Guyot6 – held that the issue of recognition and enforcement of foreign country judgments in the United States was a matter of federal common law informed by principles of international law.7 The Supreme Court in Hilton announced a presumptive rule of recognition for foreign country judgments grounded in comity and subject to certain conditions: a full and fair trial abroad in a court of competent jurisdiction, the voluntary appearance of, or a fair basis of jurisdiction over the defendant, the impartial administration of justice in the foreign court and legal system, the absence of fraud in procurement of the judgment, and reciprocity of treatment.8 Subsequently, however, the highest courts in several states ruled that recognition of a foreign judgment was an issue of ‘private’ rather than public international law,9 and the Supreme Court never took up the issue again. What did occur was the promulgation of a Uniform State Law on the subject – the Uniform Foreign Money-Judgments Recognition Act10 – which was eventually adopted by a majority of states. A revised Uniform Act was enacted in 2005.11 The broad acceptance by a large number of states of the 1962 Uniform Act and later the subsequent 2005 Revised Uniform Act reinforced the view that recognition and enforcement was a matter of state rather than federal law.12 Interestingly, the reason for the initial Act in 1962 was to provide evidence to foreign countries – most of which had a reciprocity requirement – that courts in the United States would in fact recognise and enforce a foreign country judgment.13 Ironically, however, neither the Registration Act and the enforcement of judgments between Canada and the United States, see JP George, ‘Facilitating Money Judgment Enforcement Between Canada and the United States’ (2020) 72 Hastings Law Journal 99. 6 Hilton v Guyot, 159 US 113 (1895). 7 ibid, 228. 8 ibid, 202–03, 205–06, 227. The Hilton case concerned a judgment from France which was denied recognition for lack of reciprocity. A companion judgment, Ritchie v McMullen (159 US 235 (1895)), granted recognition to an Ontario judgment, holding that the reciprocity condition was met, as an equivalent US judgment would have been recognised in Canada (at 242–43). For a historical discussion, see ED Ram, ‘Reciprocal Recognition of Foreign Country Money Judgments: The Canada–United States Example’ (1978) 8 Manitoba Law Journal 473, 497–99. 9 See Johnston v Compagnie Générale Transatlantique, 152 NE 121, 123 (NY 1926) (recognising a French judgment and stating that the issue of recognition and enforcement of a foreign country judgment is one of private rights under state law and thus the court is ‘not bound to follow [Hilton]’). 10 Uniform Foreign Money-Judgments Recognition Act (Unif L Comm’n 1962) [hereafter 1962 Uniform Act]. 11 See Uniform Foreign-Country Money Judgments Recognition Act (Unif L Comm’n 2005) [hereafter 2005 Uniform Act]. 12 See RA Brand, ‘The Continuing Evolution of US Judgments Recognition Law’ (2017) 55 Columbia Journal of Transnational Law 277, 295. The Fourth Restatement of Foreign Relations Law confirms that the issue of the recognition and enforcement of foreign country judgments is primarily one of state law. Only in the area of foreign defamation judgments, which is governed by a federal statute (the SPEECH Act) and on the question of the preclusive effect to be given to a foreign judgment with respect to a federal claim, does federal law control. See Restatement (Fourth) of Foreign Relations Law of the United States § 481, Comment a (American Law Institute 2018) [hereafter Restatement (Fourth) of Foreign Relations]. 13 See 1962 Uniform Act (n 10) Prefatory Note, 13 Part II Uniform Laws Annotated (West 2002) 40 (‘Judgments rendered in the United States have in many instances been refused recognition abroad either because the foreign court was not satisfied that local judgments would be recognised in the American jurisdiction involved or because no certification of existence of reciprocity could be obtained from the foreign government in countries where existence of reciprocity must be certified to the courts by the government. Codification by a state of its rules on the recognition of moneyjudgments rendered in a foreign court will make it more likely that judgments rendered in the state will be recognized abroad’).

166  Geneviève Saumier and Linda Silberman 1962 nor the 2005 Act included a reciprocity provision that would require a foreign country to recognise and enforce a US judgment in order for the United States to recognise and enforce its judgment.14 This state of affairs led to the unhappy situation in the United States where the enforcement of foreign country judgments in the United States was generous but enforcement of US judgments abroad continued to be met with resistance. The reasons for such resistance varied. Foreign courts often invoked public policy to prevent recognition of a US judgment, sometimes due to a concern about excessive damages, distrust of juries, or on occasion, strong disapproval of broad US discovery.15 There is no equivalent evidence of difficulties with the enforcement of Canadian judgments abroad, perhaps because civil juries are excluded in most Canadian jurisdictions, damages awards are typically lower16 and discovery is much more limited than in the United States. As a result, some of the sources of foreign hostility to US judgments are simply not present with regard to Canadian judgments. That the US judgment did not rest on an acceptable basis of jurisdiction in the eyes of the foreign court is another reason for refusal to enforce US judgments.17 A US judgment based on the traditional ‘doing business’ criteria for general jurisdiction would usually not be recognised abroad, but the US Supreme Court itself recently outlawed such a direct basis of jurisdiction as a matter of US due process.18 Still other differences among the United States and other countries about the acceptable jurisdictional bases for proceedings continue to pose a problem for US judgment recognition. Many countries in Europe identify one or two specific places where certain types of claims should be brought,19 whereas in the United States the existence of ‘minimum contacts’ between the defendant and various fora may support specific jurisdiction for an action and a resulting judgment.20 Accordingly, certain US bases of jurisdiction over a particular claim may be unacceptable with respect to recognition of its judgments abroad. For example, a country may have adopted a ‘mirror image’ principle to determine when its courts will respect the basis of jurisdiction used in the foreign proceeding. Under that approach, only when the country permits the exercise of a particular basis of jurisdiction over a defendant for a particular type of claim will it accept a similar assertion of jurisdiction by a foreign court as an appropriate basis of jurisdiction in the enforcement context. Other countries, notwithstanding their own broad grounds for the assertion of direct jurisdiction for their own proceedings, apply a substantially more restrictive standard of acceptable jurisdiction (indirect jurisdiction) in the recognition and enforcement

14 A few states – Arizona, Florida, Maine, Massachusetts, Ohio and Texas – have enacted a non-uniform version of the Uniform Acts that gives the court discretion to deny recognition on the ground of a lack of reciprocity. 15 See SE Coco, ‘The Value of a New Judgments Convention for US Litigants’ (2019) 94 New York University Law Review 1209, 1221. 16 This difference may be cultural but is also related to the fact that there is a cap on damages for pain and suffering in personal injury cases, damages are mainly awarded by judges not juries, punitive damages are more restricted and there are no statutes that provide for treble damages. 17 Coco (n 15) 1218. 18 See Daimler AG v Bauman, 571 US 117 (2014) (stating that with respect to a corporation, the place of incorporation and principal place of business are the paradigmatic bases for the exercise of general (all-purpose) jurisdiction). 19 eg, under Dutch law, specific jurisdiction for contract claims exists where the ‘obligation which forms the basis for the right of action or petition, has been performed or must be performed in the Netherlands’ (art 6, Dutch Code of Civil Procedure, applicable where the defendant is not domiciled in the EU). 20 Specific jurisdiction (usually reflected in a specific-act statute) requires a claim that arises from ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws’ to satisfy due process. See Hanson v Denckla, 357 US 235, 253 (1958). See also McGee v International Life Ins Co, 355 US 220 (1957). A defendant in a commercial case may be subject to jurisdiction in the forum state for claims arising from various types of activities, such a transacting business in the state or breaching a contract in the state by failing to perform acts required by the contract to be performed in the state.

Perspectives from the US and Canada  167 context. England is a prime example of such a regime. English law, pursuant to Rule 6.36 of the Civil Practice Rules, provides for very liberal assertions of direct jurisdiction, but accepts only the limited grounds of presence, residence and various forms of consent or submission as acceptable bases of jurisdiction to recognise or enforce a foreign country judgment.21 The wide scope of jurisdictional rules in Canada22 – arguably even wider than in the United States – may well present a similar challenge for enforcement of its judgments abroad for similar reasons, although there is little evidence of this in practice. The HCCH 2019 Judgments Convention addresses several of the points referenced above that have hampered the enforcement of US judgments abroad. For that reason alone, ratification of the Convention should be attractive to the United States. First, with respect to reciprocity, the nature of the Convention itself will create reciprocity, at least as to those judgments covered by the Convention. Second, there is no danger that the Convention will restrict a country from applying a more generous recognition and enforcement scheme than that established by the Convention. An important provision of the Convention architecture is Article 15, which, subject to certain exceptions, allows for more liberal recognition and enforcement under national law than provided for by the Convention. Third, the jurisdictional grounds identified in the Convention to make a foreign judgment ‘eligible’ for recognition are sufficiently broad to permit enforcement of a substantial number of US judgments. Moreover, it is not necessary that the actual Convention rules on jurisdiction be applied by the court of origin of the judgment; ‘eligibility’ is satisfied if the Convention standard is established on the basis of the facts on which jurisdiction rests.23 The ‘eligibility’ provisions will also operate as guidance for litigants in US courts who foresee that foreign recognition and enforcement of their judgment may ultimately be necessary. Finally, as we will see, the permissible grounds for non-recognition of a judgment under the Convention are consistent with the existing grounds under the law of most countries, including the United States and Canada, and should in no way restrict existing recognition and enforcement practice. Although ‘public policy’ remains a ground for non-recognition under the Convention, the standard set forth is that recognition or enforcement be ‘manifestly incompatible with the public policy of the requested State’.24 And even though the Convention does permit recognition or enforcement to be refused ‘if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered’,25 it also includes a provision on severability to permit recognition or enforcement for the part of the judgment that is entitled to recognition or enforcement under the Convention.26 For all of these reasons, the ratification of the HCCH 2019 Judgments Convention by a large number of countries will substantially benefit US judgment recognition and enforcement abroad. Since Canadian judgments do not face the same obstacles traditionally plaguing US judgments abroad, those

21 See generally, O Chase et al (eds), Civil Litigation in Comparative Context, 2nd edn (West Academic Publishing 2017) 710. 22 Courts in the common law jurisdictions in Canada (all except Québec) will assert jurisdiction over a foreign defendant on the basis of a ‘real and substantial connection’ with the litigation or based on the defendant’s presence in the jurisdiction or its consent. The Supreme Court of Canada has provided some guidance on what constitutes a ‘real and substantial connection’ (see Club Resorts Ltd v Van Breda, 2012 SCC 17). In Québec, the grounds for direct jurisdiction are specified in the Civil Code of Québec (SQ 1991, c 64, art 3148 (Can); they are equally broad although a foreign corporate defendant cannot be sued in Québec unless it has an establishment in the province and the dispute relates to its business in the province. 23 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 135. 24 Art 7(1) (c). The Convention uses ‘State’, and this chapter will also capitalise the word when it is to be distinguished from a ‘state’ of the United States, to avoid any ambiguity. 25 Art 10(1). 26 Art 10(2).

168  Geneviève Saumier and Linda Silberman reasons may be less compelling for Canada although the reciprocity inherent to a treaty regime certainly provides an incentive for ratification of the Convention for both countries.

III.  Perspectives on Incoming Judgments: The Impact of the Convention on Recognition and Enforcement Practice in the United States and Canada As already noted, and as explained in more detail below, the HCCH 2019 Judgments Convention is by and large consistent with recognition and enforcement practice in both countries. And to the extent that recognition and enforcement of foreign judgments in the United States and Canada is more generous than what is required by the Convention, the Convention provides a floor rather than a ceiling and permits broader recognition and enforcement under national law. Controversy about the Convention in the United States, if any, is likely to come on the question of whether the treaty should be implemented by a federal statute, through a Uniform state law, or some type of cooperative federalism.27 The implementation issue plays out differently in the Canadian context. Before addressing the implementation issue, it will be useful to make some comparisons between the Convention provisions and existing recognition practice in the United States and Canada that establish the compatibility of the Convention with existing law in both countries. Where important distinctions between the two countries exist, these will be highlighted.

A.  The Convention Provisions in Comparison to Canadian and US Law The history of recognition and enforcement of foreign judgments in Canada is quite distinct from the US experience. First, the issue has always been understood to be within the purview of provincial, not federal law, and second, reciprocity was never a condition.28 Until 30 years ago, the rules on recognition and enforcement were largely based on English common law, which was very restrictive regarding foreign judgments.29 From early in the twentieth century, statutes were enacted in all of the Canadian common law jurisdictions to streamline recognition and enforcement across internal borders by way of a registration process, proposed as an alternative to the traditional common law action on the foreign judgment.30 Based on a model statute31 put

27 See CJ Cardoso, ‘Implementing the Hague Judgments Convention’ New York University Law Review (forthcoming); New York City Bar Association Working Group, Report on Three Private International Law Treaties (2022) (forthcoming) [hereafter New York City Bar Report]. 28 Reciprocity was introduced as a requirement for the alternative registration system introduced in the early twentieth century, discussed further in this paragraph. It was never a requirement for enforcement by an action at common law, which remain largely available in all Canadian common law jurisdictions. Québec law has no reciprocity requirement or registration system. 29 English law remains so, as noted above in the text accompanying n 20. This restrictive approach was true also in Québec until 1994 when the comprehensive reform of its private international law, including the law on recognition and enforcement, came into effect. See HP Glenn, ‘Recognition of Foreign Judgments in Québec’ (1997) 28 Canadian Business Law Journal 404, 405. 30 The statutes did not abolish enforcement at common law but merely provided for a simplified registration process based on the same substantive rules. For an excellent history, see KH Nadelmann, ‘Enforcement of Foreign Judgments in Canada’ (1960) 38(1) Canadian Bar Review 68. 31 See Uniform Law Conference of Canada, Reciprocal Enforcement of Judgments Act (REJA), available at: www.ulccchlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Enforcement-of-Foreign-Judgments-Act-(Consolidated).pdf.

Perspectives from the US and Canada  169 forward by the Uniform Law Commission of Canada (ULCC)32 in 1924, these statutes codified the restrictive English common law, even adding a defence that allowed a judgment debtor to object to enforcement based on a defence to the original cause of action. They also included a reciprocity requirement, which was easily satisfied as every enacting jurisdiction in Canada named the others as reciprocating jurisdictions.33 To address judgments from outside Canada, the ULCC put forward a uniform Foreign Judgments Act in 1934 but it was unsuccessful, being adopted by only two provinces. In light of this failure, in 1956, the ULCC decided to modify the 1924 model act to allow for expansion of its scope of application beyond judgments from other Canadian jurisdictions. Several provinces eventually adopted this new version, and over time, a few opted to provide for reciprocity with specified foreign jurisdictions, including some US states.34 The result was a patchwork of statutory and common law regimes across Canadian jurisdictions but continued general conformity with the restrictive English model. The situation was dramatically reversed in 1990 as a result of a Supreme Court of Canada judgment – Morguard Investments Ltd v De Savoye35 – concerning enforcement of judgments between Canadian provinces at common law.36 In that decision, the Supreme Court of Canada rejected the English law approach in favour of a significant expansion of the recognised bases for indirect jurisdiction. The Court held that the English model was antiquated for the modern world37 and particularly inappropriate within a federation.38 The Court declared that so long as the court of origin could be said to have had a ‘real and substantial connection’ with the litigation, its jurisdiction should be recognised for enforcement purposes. This jurisdictional basis was in addition to the traditional bases of a sufficient connection between the defendant and the foreign court or consent of the defendant. Admittedly, this decision only changed the Canadian common law on enforcement of judgments within Canadian provinces and territories.39 A few years later, however, in Hunt v T&N plc, the Supreme Court of Canada declared that the new rules enunciated in Morguard had constitutional status, even absent any express words to that effect in Canadian constitutional sources.40 Circulation of judgments within Canada became a 32 Then called the Conference of Commissioners on Uniformity of Legislation in Canada; its name was officially changed in 1974. See Uniform Law Conference of Canada, available at: ulcc-chlc.ca. 33 Because Québec never adopted the Act, it is not included in the list and therefore its judgments cannot be enforced under the statute but must be enforced by a common law action. The same is true of other Canadian judgments which can only be enforced in Québec by way of an action under the Québec Code of Civil Procedure. 34 eg, Washington and Idaho are reciprocating states in three provinces (British Columbia (BC), Alberta and Manitoba). The longest list is in BC which also includes Alaska, California, Colorado and Oregon. These three provinces also have reciprocity with Australia, while BC also includes Germany and Austria. Most of the other provinces only have reciprocity agreements with other Canadian common law provinces. 35 Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077 (also available at 1990 CanLII 29 (SCC). 36 The case concerned enforcement of an Alberta judgment in British Columbia. The registration route was not available to the judgment creditor because the Alberta court’s jurisdiction did not conform to any of the recognised jurisdictional bases in the statute. 37 Morguard (n 35) 1098 (‘Accommodating the flow of wealth, skills and people across state lines has now become imperative. Under these circumstances, our approach to the recognition and enforcement of foreign judgments would appear ripe for reappraisal’). 38 ibid, 1099 (‘[T]he English rules seem to me to fly in the face of the obvious intention of the Constitution to create a single country’). 39 Given that Québec is not a common law jurisdiction in Canada, its law on recognition and enforcement was not affected by the Supreme Court’s decision. As noted previously, Québec law on the subject was comprehensively codified in the Civil Code of Québec (arts 3155–68) in 1991 (in force in 1994). Although that codification predated the Morguard decision, it is largely consistent with the underlying principles it promulgated. See, in general, Glenn (n 29); G Saumier, ‘The Recognition of Foreign Judgments in Quebec – The Mirror Crack’d?’ (2002) 81(3) Canadian Bar Review 677. 40 Hunt v T&N plc [1993] 4 SCR 289, 109 DLR (4th) 16 (specifically at 324: ‘[the] integrating character of our constitutional arrangements as they apply to interprovincial mobility calls for the courts in each province to give “full faith and credit” to the judgments of the courts of sister provinces’). For discussion, see V Black and AW MacKay, ‘Constitutional Alchemy in the Supreme Court: Hunt v T & N plc’ (1994) 5 National Journal of Constitutional Law 79.

170  Geneviève Saumier and Linda Silberman constitutional obligation, and provincial legislatures could not adopt more restrictive jurisdictional conditions, at least not with regard to judgments from other Canadian jurisdictions.41 Over the ensuing 10 years, lower courts started to apply the new Morguard regime to judgments from outside Canada. It was not until 2003 that the Supreme Court of Canada had an opportunity to rule on that extension in Beals v Saldanha,42 a case concerning enforcement in Ontario of a judgment from Florida. The Court confirmed that the expansion of indirect jurisdiction since Morguard was equally appropriate for judgments from outside Canada, thereby eliminating any difference between enforcement of Canadian and international judgments. In other words, if the jurisdiction of the foreign court of origin can be said to rest on a connection to the defendant or its consent, or on a real and substantial connection to the facts underlying the dispute, it will satisfy the jurisdictional condition for recognition and enforcement. The Beals v Saldanha decision was based on the arguments from Morguard calling for a modernisation of the enforcement regime. No Canadian federalism concerns were present since the case involved enforcement of a judgment from outside Canada. Thus, there was no reason for giving the ruling a constitutional status that would constrain the exercise of provincial competence over the enforcement of truly foreign judgments, and thus provinces can have different rules.43 Currently three provinces have rules that diverge from the common law approach put forward in Beals v Saldanha and they are all more restrictive regarding the requirements for indirect jurisdiction.44 Just prior to the release of the Supreme Court of Canada’s judgment in Beals v Saldanha, the ULCC put forward a new uniform model Act (Enforcement of Foreign Judgments Act).45 The Act broadens the jurisdictional bases to include the ‘real and substantial connection’ with the foreign court,46 but narrows the traditional basis of the defendant’s presence for natural persons and corporations.47 Moreover, it adds a discretion to refuse to recognise the foreign court’s jurisdiction if ‘it was clearly inappropriate’ for the court of origin to take jurisdiction, but only in cases where jurisdiction was not based on a real and substantial connection.48 The Act maintains the usual defences to enforcement including lack of notice, fraud and public policy.49 In addition to

41 The statutory regimes for registration were not affected by this decision since the common law action remained as an alternative. In 1992, the ULCC did adopt a new act to reflect the changed common law (Enforcement of Canadian Judgments Act (ECJA)) that has been adopted in six provinces. It also withdrew the REJA, but several provinces still retain that statute either because they have not adopted the newer ECJA or because their REJA includes reciprocity with foreign states which are of course not covered by the ECJA. 42 Beals v Saldanha, 2003 SCC 72. 43 ibid, 28 (‘Subject to the legislatures adopting a different approach by statute, the “real and substantial connection” test should apply to the law with respect to the enforcement and recognition of foreign judgments’). See also, SGA Pitel, ‘Enforcement of Foreign Judgments: Where Morguard Stands after Beals’ (2004) 40 Canadian Business Law Journal 189, 224. 44 These are Québec (in particular regarding judgments on contract and tort claims; see art 3168 Civil Code of Québec (SQ 1991), New Brunswick and Saskatchewan. New Brunswick is the most restrictive, having retained the old English law approach (Foreign Judgments Act, RSNB 2011, c 162). See A Warner La Forest, ‘New Brunswick’s Continuing Policy of Splendid Isolation in the Recognition and Enforcement of Judgments’ (2016) 58 Canadian Business Law Journal 57. Saskatchewan is only slightly more restrictive, having adopted the Enforcement of Foreign Judgments Act, SS 2005, c E-9.12,1 discussed in the next paragraph. 45 The text of the Act is available online at: Uniform Law Conference of Canada: ulcc-chlc.ca/Civil-Section/UniformActs/Uniform-Enforcement-of-Foreign-Judgments-Act. For a critical discussion, see Pitel (n 43). 46 Uniform Enforcement of Foreign Judgments Act, ss 8(f) and 9. 47 ibid, s 8(e) and (d). Presence of natural persons is restricted to ‘habitual residence’ and for corporations, to those ‘incorporated in the State of origin, exercised its central management in that State or had its principal place of business located in that State corporation’. 48 ibid, s 10. This somewhat confusing provision was examined in detail in Norwood Sales Inc v Empire Welding and Machining Ltd 2014 SKQB 255 (‘Section 10 of the Act cannot be interpreted as being conjunctive and requiring that both ss 10(a) and (b) be established by the judgment debtor’; ibid, s 19). 49 ibid, s 4.

Perspectives from the US and Canada  171 these rules on jurisdiction, the Act provides that if a foreign judgment awards non-compensatory damages, or excessive compensatory damages, enforcement can be limited to an amount of damages that ‘could have been awarded’ by the enforcement court in similar circumstances.50 The statute also expressly applies to ‘non-monetary judgments’, foreshadowing an opening in that direction by the Supreme Court of Canada in a judgment from 2006.51 The Act does not contain any reciprocity requirement. Like its 1934 predecessor, however, this new uniform statute has not met with much success, having been enacted by a single province so far.52 As a result, foreign country judgments continue to profit from the more generous common law approach to recognition and enforcement set out in Beals v Saldanha in all but three Canadian jurisdictions.53 Although the ‘real and substantial connection’ criterion for assessing the jurisdiction of the foreign court remains somewhat vague (and has been criticised on that basis),54 it has certainly opened Canadian jurisdictions to the recognition and enforcement of foreign judgments in the twenty-first century, going further even than the United States.55 In the United States, as discussed earlier, recognition and enforcement of foreign country judgments – as the result of historical accident – is primarily one of state law.56 A majority of US states have adopted one of the two Uniform Acts mentioned previously;57 other US states have enacted their own state statutes, and still others have relied on common law principles. Although the overall result among the states, as reflected in the Fourth Restatement of Foreign Relations Law, is one of general consistency, there are nonetheless some significant differences among the state laws, including the requirement of reciprocity.58 Although the Uniform Acts in the United States themselves extend only to a claim that grants or denies recovery of a ‘sum of money’ (ie, claims for money damages), the principles of the Acts and the law in most states extend recognition and enforcement to a broader set of judgments.59 As noted earlier, the same applies in Canada. Thus existing law in both the United States and Canada appears to be consistent with the HCCH 2019 Judgments Convention definition of a judgment as ‘any decision on the merits given by a court, whatever that decision may be called, including a decree or order, and a determination of costs or expenses of the proceeding by

50 ibid, s 6. It seems obvious that this provision is meant to protect Canadian defendants from potentially large damage awards in US judgments. For a nuanced application of this section, see Britton v Simon (Estate) 2016 SKQB 30, where the court refused to reduce the amount of damages awarded by a jury in Wisconsin. 51 Pro Swing Inc v Elta Golf Inc, 2006 SCC 52; see also below (n 61). 52 Saskatchewan: The Enforcement of Foreign Judgments Act (n 44). 53 See above (n 44). 54 See TJ Monestier, ‘Foreign Judgments at Common Law: Rethinking the Enforcement Rules’ (2005) 28 Dalhousie Law Journal 163. 55 See HS Fairley, ‘Open Season: Recognition and Enforcement of Foreign Judgments in Canada after Beals v Saldanha’ (2005) 11 ILSA Journal of International and Comparative Law 305 (arguing that Beals provided virtually guaranteed enforcement of default US judgments against Canadian defendants given that jurisdictional rules in US courts would almost always conform to the ‘real and substantial connection’ test and the narrow scope of the defences of natural justice and public policy). 56 See above, text accompanying nn 6–9. 57 See above, text accompanying nn 10–11. 58 The differences among the various state laws, including variations in state adoptions of the Uniform Acts, are discussed in Recognition and Enforcement of Foreign Judgments: Hearing Before Subcomm on Cts, CL & the Admin of Just of the H Comm on the Judiciary, 112th Cong (2011) (Prepared Statement of Professor Linda J Silberman). See also RA Brand, Federal Judicial Center International Litigation Guide: Enforcement of Foreign Judgments (2014). 59 See Restatement (Fourth) of Foreign Relations (n 12) § 481. Recognition of Foreign Judgments (“‘[A] final, conclusive, and enforceable judgment of a court of a foreign state granting or denying recovery of a sum of money, or determining a legal controversy, is entitled to recognition by courts in the United States”’) (emphasis added). In the context of the Uniform Acts, courts explain that comity remains the basis for recognising foreign judgments not covered by the Acts. See, eg, Manco Contracting Co (WLL) v Bezdikian, 45 Cal 4th 198 (2008).

172  Geneviève Saumier and Linda Silberman the court’.60 Still, it may well be that the broader Convention definition will expand the types of judgments entitled to reciprocal recognition by parties to the Convention.61 It should be noted that an interim measure of protection is not a judgment under the Convention,62 nor are such measures generally enforceable as a matter of law in the United States or in Canada. The scope of the HCCH 2019 Judgments Convention covers civil and commercial judgments among Contracting States, but with a broad list of exclusions.63 The fact that existing law in the United States and Canada would extend to judgments in some of these areas does not present a problem for either country, given that Article 15 would continue to permit this broader recognition under national law.64 The basic principle of the Convention found in Article 4(1) – that a judgment given by a court of a Contracting State shall be recognised and enforced in another Contracting State and may be refused only on the grounds specified in the Convention – is consistent with US and Canadian law that holds (subject to specific exceptions) that a final conclusive, and enforceable judgment of a court of a foreign State is entitled to recognition by courts in either country.65 Courts in the United States tend to interpret finality, conclusiveness and enforceability based on the laws of the foreign jurisdiction where the judgment was rendered,66 and the Convention provision in Article 4(3) is to the same effect.67

B.  The ‘Eligibility Filters’ of Articles 5 and 6 of the Convention Article 5(1) of the Convention identifies judgments that are ‘eligible’ for recognition, with ‘eligibility’ turning on the connections of the underlying action or parties with the rendering court – in effect, identifying the bases for indirect jurisdiction that must be respected by a foreign court if its judgment is to circulate under the Convention. The Convention does not limit other bases of indirect jurisdiction, thus leaving Contracting States to regulate this area under

60 Art 3(1)(b). 61 eg, the Canadian Supreme Court, in Pro Swing Inc v Elta Golf Inc (n 51) in a 4:3 decision refused to enforce a US order enjoining the defendant from marketing or selling a product with an infringing mark. The Canadian Supreme Court explained that a change to its rule that limited recognition and enforcement to final money judgment should be considered, but in any event found this particular order not enforceable for various reasons. The dissent agreed that the common law should be extended to permit the enforcement of foreign non-money judgments and believed there was no reason to refuse to enforce substantial parts of the US order. 62 Art 3 (1)(b). 63 The exclusions are listed in Art 2. Among the exclusions are a variety of family law matters, wills and succession, insolvency, defamation, privacy, intellectual property, antitrust, and arbitration and related proceedings. For a discussion, see Xandra Kramer, ch 1, section B, in this volume. The Uniform Acts in the United States also contain certain exclusions: (1) judgments for taxes; (2) judgments that constitute fine or penalties; and (3) judgments involving domestic relations. 1962 Uniform Act (n 10) § 1(2); 2005 Uniform Act (n 11) § 3(b). These exclusions also apply outside the Uniform Acts. See Restatement (Fourth) of Foreign Relations (n 12) § 489 Tax and Penal Judgments (‘Courts in the United States do not recognize or enforce judgments rendered by the courts of foreign states to the extent such judgments are for taxes, fines, or other penalties, unless authorized by a statute or an international agreement’). Similar exceptions are found in all Canadian jurisdictions. 64 Foreign defamation judgments are covered by a federal statute – Securing the Protection of our Enduring and Established Constitutional Heritage Act) (the SPEECH Act). Certain family law matters dealing with custody and support are subject to specific uniform state laws (the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Uniform Interstate Family Support Act (UIFSA) that have been adopted in all states. In Canada, support orders are typically covered by separate statutes (eg, the Inter-jurisdictional Support Orders Act, SS 2002, c I-10.03). 65 See Restatement (Fourth) of Foreign Relations (n 12) § 481. For Canada, see Pro Swing Inc v Elta Golf Inc (n 51) 10. 66 Restatement (Fourth) of Foreign Relations (n 12) § 481, comment d. For Canada, this is implicit; see Pro Swing Inc v Elta Golf Inc (n 51) 10. 67 Art 4(3) (‘A judgment shall be recognized only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin’). For a discussion, see Wolfgang Hau, ch 2, section C, in this volume.

Perspectives from the US and Canada  173 national law.68 Most of the filters in Article 5(1) should be uncontroversial from the perspective of both the United States and Canada as they are consistent with the rules regarding jurisdiction of a foreign court for the purposes of enforcing its judgment in both countries.69 Moreover, the filters are also largely compatible with existing jurisdictional rules for the assumption of jurisdiction by courts in both countries, which will satisfy the ‘eligibility’ condition for circulation of judgments from the United States or Canada in other Contracting States. The filter in Article 5(1)(f) on implied submission generated substantial discussion in the negotiations. That filter is consistent with the law in the United States70 and Canada71 in so far as it makes clear that a defendant who proceeds to the merits without contesting jurisdiction submits (‘impliedly consents’) to jurisdiction. However, Article 5(1)(f) goes further and provides that there is no implied consent under the Convention if a defendant makes and loses an objection to jurisdiction but then proceeds to defend on the merits. Unless some other Article 5 filter is satisfied, the judgment would not circulate under the Convention.72 This position is clearly at odds with a recent decision of the Supreme Court of Canada, which held that defending on the merits is conclusive of submission, even if done under protest as to jurisdiction.73 The law in the United States on this point remains unclear.74 An important exception in Article 5(1)(f) provides that there is no implied submission if an objection to jurisdiction or its exercise would have been futile under the law of the State of origin. Such a limitation is necessary in the context of a Convention that contains specific provisions on jurisdictional eligibility. For example, if the jurisdiction of a foreign court under its national law is based on a jurisdictional ground outside the Convention filters (such as the nationality of the plaintiff and the plaintiff is in fact a national of that State), a defendant would have no basis to object to the court’s jurisdiction. Such a defendant still has every incentive to defend on the merits. If the plaintiff should seek enforcement pursuant to the Convention, the defendant’s failure to object to a jurisdictional ground not eligible under Article 5 of the Judgments Convention should not be treated as an ‘implied submission’, and recognition and enforcement of the judgment under the Convention should be denied.75 Overall, the narrow range of filters does mean that some US and Canadian judgments – particularly judgments against consumers and employees – may not be enforced through the Convention. Although judgments against consumers and employees are not excluded from the Convention, Article 5(2) restricts the application of the filters in Article 5(1) when the judgment debtor is a consumer in a matter relating to a consumer contract or an employee in a matter

68 If a Contracting State’s direct jurisdictional rules are not compatible with the filters in Art 5, however, it cannot expect any ensuing judgment, based on such rules, to circulate under the Convention. Of course, another Contracting State may still enforce the judgment under its national law, as allowed under Art 15 of the Convention. 69 eg, filters based on connections to the defendant (art 5(1)(a)), to the contract (art 5(1)(g)), to a tort (art 5(1)(j)), to a counterclaim (art 5(1)(l)). For a discussion of other filters in art 5, see Pietro Franzina, ch 3 in this volume. 70 See 1962 Uniform Act (n 10) § 5(a)(2); 2005 Uniform Act (n 11) § 5(a)(2). 71 In the context of enforcement of a foreign judgment, see Beals v Saldanha (n 42) 34–35 and more recently, Barer v Knight Brothers LLC, 2019 SCC 13, 60. 72 See Garcimartín and Saumier (n 23) para 169. For a discussion, see G Saumier, ‘Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention’ (2020) 67 Netherlands International Law Review 49. However, it is possible that recognition and enforcement could still be sought under national law pursuant to Art 15 of the Convention. 73 See Barer v Knight Brothers LLC (n 71) concerning a judgment from Utah. 74 Compare Hunt v BP Exploration Co (Libya), 492 F Supp 885, 895–96 (ND Tex 1980) (‘Litigating on the merits after loss on a jurisdictional challenge is not considered consent to jurisdiction’) with S Carolina National Bank v Wespac Banking Corp, 678 F Supp 596, 598–99 (DSC 1987) (defence on the merits after the loss of a jurisdictional objection construed as consent to jurisdiction where defendant failed to take an interlocutory appeal on jurisdiction). 75 Admittedly the wording of the exception in Art 5(1)(f) does not guarantee this result, as the specific language is that an objection to jurisdiction would not have succeeded in the foreign court.

174  Geneviève Saumier and Linda Silberman relating to a contract of employment. In such cases, only judgments from the State of habitual residence of the consumer or employee will satisfy the jurisdictional requirement, unless the consumer or employee expressly submitted to the foreign court during the proceedings.76 This filter is narrower than the jurisdiction exercised by courts in both Canada77 and the United States78 in such cases, thus potentially limiting enforceability of their judgments under the Convention in other Contracting States. The same might be said concerning torts, at least for Canada. Article 5(1)(j) limits eligibility to judgments rendered by a court in the State where the wrong causing the injury occurred. In other words, the filters do not include the place of injury alone, if that place is not also the place of the wrong, such as a claim in a product liability action against a foreign manufacturer. Canadian courts have asserted jurisdiction in such a case,79 but under the Convention, any ensuing judgment would not meet the filter in Article 5(1)(j). Of course, the requested court could enforce it if another filter was satisfied, or even if not, enforcement could occur under national law (as per Article 15). Many, but not all, Canadian courts might recognise the jurisdiction of a foreign court in such circumstances, under national law, given the broad ‘real and substantial connection’ test for foreign judgments.80 The situation in the United States is different. Indeed, the United States resisted the suggestion that the place of injury alone be included as an ‘eligibility’ filter in Article 5 of the Convention. The reason is that in the United States the place of injury without additional purposeful conduct by the defendant does not meet the US constitutional due process standard for direct jurisdiction.81 In the United States, it has been thought that the bases for indirect jurisdiction in the recognition and enforcement context – which take the form of ‘eligibility’ filters in the Convention – must satisfy the same constitutional due process standards as direct jurisdiction.82 If that view is

76 See Garcimartín and Saumier (n 23) para 221. 77 In Canada, jurisdiction for claims against consumers or employees is not subject to specific limitations; moreover, pre-dispute forum selection clauses are generally enforceable in such contracts (subject to a narrow public policy exclusion – see Douez v Facebook, Inc, 2017 SCC 33), save in Québec where they are expressly non-binding on resident consumers or employees (art 3149 Civil Code of Québec). 78 In the United States, consumers and employees are generally subject to jurisdiction under the same rules and constitutional due process standards as are other defendants. Also, courts have not, as a matter of constitutional due process, given any special protection to consumers or employees in addressing the validity of forum-selection clauses. See, eg, Carnival Cruise Lines v Shute, 499 US 585 (1991) (upholding forum-selection clause and requiring consumer to sue cruise line in the forum designated in the clause). However, efforts at the state level to protect consumers and other special classes are not foreclosed, and some movement in this direction has occurred. See P Hay et al (eds), Conflict of Laws, 6th edn (West Academic Publishing 2018) 502–03. 79 It has been accepted for direct jurisdiction based on the Supreme Court of Canada’s judgment in Moran v Pyle National (Canada) Ltd [1975] 1 SCR 393, 43 DLR (3d) 239. For a recent review of the case law, see SSAB Alabama Inc v Canadian National Railway Company, 2020 SKCA 74. In Québec, see Civil Code of Québec, SQ 1991, c 64, art 3148(3). 80 In Beals v Saldanha (n 42), the Supreme Court of Canada held that the reasoning behind the jurisdictional rule from Moran v Pyle, ibid, ‘is equally compelling with respect to foreign jurisdictions’ (34–35). This conclusion does not apply in New Brunswick (see Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077, 76 DLR (4th) 256). In Québec, both the wrong and the injury must have occurred in the State of origin for its jurisdiction to be recognised for enforcement purposes (art 3168(3)), an even narrower basis than under art 5(1)(j). There is a similar restrictive jurisdictional basis for contract claims in art 3168(4) For an illustration of both, see Iraq (State of) v Heerema Zwijndrecht, 2013 QCCA 1112, 21. 81 See, eg, J McIntyre Machinery, Ltd v Nicastro, 564 US 873 (2011) (English manufacturer who sold at least one of its shearing presses to a New Jersey employer whose employee was injured in New Jersey while using the press could not be said to ‘purposefully avail’ itself of the New Jersey market and thus was not constitutionally subject to jurisdiction in New Jersey). 82 Under existing law in the United States, lack of personal jurisdiction is a mandatory ground for non-recognition. See Restatement (Fourth) of Foreign Relations (n 12) § 483. Comment e, Personal Jurisdiction, states further: ‘Courts in the United States will not recognize a foreign judgment if the court rendering the judgment would have lacked personal jurisdiction under the minimum requirements of due process imposed by the Constitution’.

Perspectives from the US and Canada  175 correct, then the ‘eligibility’ provisions of the Convention would also have to meet US due process standards in order for the United States to be in a position to ratify the Convention. And although the place of injury alone would not satisfy that test, the ‘eligibility filters’ that have actually been included in the Convention do.83 Still, it might well be that the constitutional test for ‘indirect’ jurisdiction is not necessarily the same as that for direct jurisdiction; in that case foreign judgment recognition could include judgments where the basis of jurisdiction in the foreign court does not satisfy the US constitutional requirements for direct jurisdiction.84 Interestingly, the US Supreme Court has never considered the issue. Finally, Article 6 of the HCCH 2019 Judgments Convention provides that in order to recognise and enforce a judgment determining a right in immovable property, the property must be situated in the State rendering the judgment. It is unique in the structure of the Convention in establishing a mandatory basis for non-recognition of such a judgment rendered elsewhere. That provision is consistent with the approach a court in the United States or Canada85 would take with respect to any attempt to enforce a judgment relating to a right in real property that was not rendered in the State where the property was situated.

C.  The Exceptions to Recognition and Enforcement under Article 7 The exceptions to recognition and enforcement of a Convention judgment are listed in Article 7 of the Convention, and by and large are consistent with existing law in the United States86 and in Canada,87 thus eliminating a potential obstacle to ratification in both countries. These grounds are largely focused on lack of procedural fairness to the defendant, including in the specific proceedings, lack of notice, fraud, violation of the enforcing State’s public policy, or a forum selection agreement designating the courts of a State other than the State of origin,88 and inconsistency with a prior judgment. In addition, the Convention permits non-recognition if there are pending proceedings on the same subject matter in the requested State, the court of the requested State was seised before the court of origin and there is a close connection to the dispute and the requested State (Article 7(2)). No such basis for non-recognition is found in existing law in the United States or in Canada

83 See New York City Bar Report (n 27). 84 One example might be a situation where the foreign judgment presented for recognition or enforcement in the United States is based on jurisdiction exercised by the courts of one treaty partner over the domiciliary of another treaty partner in compliance with the treaty (such as in the Brussels Recast). There is no reason why the internal US constitutional standard applicable to direct jurisdiction should control in this context. For further discussion of the point, see American Law Institute, Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute (2005) 89–90. 85 But see Lanfer v Eilers, 2021 BCCA 241, leave to appeal to the Supreme Court of Canada granted but appeal discontinued. 86 See generally, Restatement (Fourth) of Foreign Relations (n 12) § 484. 87 For a discussion of the defences at common law, see Beals v Saldanha (n 42). The same defences are included in the Civil Code of Québec (art 3155) and in all enforcement-related statutes in the common law provinces. 88 The HCCH 2019 Judgments Convention states in its Preamble that it is ‘complimentary to the Convention of 30 June 2005 on Choice of Court Agreements’. Consequently, the filter in Art 5(1)(m) of the Judgments Convention applies only to non-exclusive choice of court agreements, leaving exclusive agreements to be dealt with under the HCCH 2005 Choice of Court Convention. Nevertheless, as noted in the text here, a judgment rendered by a court that was not the court designated in a forum selection agreement may be refused enforcement, and Art 7(1)(d) does not limit this to non-exclusive agreements (see Garcimartín and Saumier (n 23) para 269). The HCCH 2005 Choice of Court Convention is in force but has not been ratified by either Canada or the United States. The latter, however, is a signatory to the HCCH 2005 Convention.

176  Geneviève Saumier and Linda Silberman (outside Saskatchewan and Québec),89 but the inclusion of such a provision in the Convention does not present a conflict for recognition practice in either country. First, it is only a discretionary basis for non-recognition, and second, Article 15 permits a more generous recognition regime under national law. However, the provision might continue to provide an obstacle to recognition of a US or Canadian judgment abroad, albeit a discretionary one.90 The reason is that neither country has an equivalent lis pendens mechanism to addresses parallel proceedings. Although existence of a foreign parallel proceeding may be one factor that a court in the United States or Canada91 will look to in applying the more general doctrine of forum non conveniens, there is no formal ‘first-to-file’ rule as there is under the national law of many countries92 and under the EU Brussels Ibis Regulation.93 Thus it is possible that a court in the United States or in Canada will proceed with a case notwithstanding a prior parallel proceeding in another country, and the resulting judgment could then be at risk under the Convention. Other than Article 7(2) most of the other Convention grounds for non-recognition are also grounds for non-recognition under existing law in the United States, whether under the Uniform Act, state statutes, or common law, and thus application of existing US law is much the same as under the Convention.94 The same can be said of Canada. There is one notable and important difference between current US law and the HCCH 2019 Judgments Convention that could potentially create an inconsistency with existing law on recognition and enforcement in the United States. The Convention does not include mandatory grounds for non-recognition95 (other than the narrow rule for cases involving real property in Article 6), and existing law in the United States does mandate non-recognition of a foreign money judgment in certain circumstances.96 Only one of these mandatory grounds – systemic 89 Art 3155(4) of the Civil Code of Québec (SQ 1991, c 64) specifically excludes recognition in a lis pendens situation, as does s 4 of Saskatchewan’s Enforcement of Foreign Judgments Act (n 44). The Québec rule was applied in Canada Post Corp v Lépine, 2009 SCC 16. 90 See L Silberman, ‘The 2019 Judgments Convention: The Need for Comprehensive Federal Implementing Legislation and a Look Back at the ALI Proposed Federal Statute’ in J Bedard and PW Pearsall (eds), Reflections on International Arbitration: Essays in Honour of George Bermann (Juris Publishing 2022) [hereafter ‘Silberman, The 2019 Judgments Convention’]. 91 For common law provinces, see Teck Cominco Metals Ltd v Lloyd’s Underwriters, 2009 SCC 11. Québec oddly has both lis pendens and forum non conveniens mechanisms for direct jurisdiction (arts 3135 and 3137 of Québec Civil Code) although both are discretionary, thereby rejecting the rigid first-to-file rule mentioned in that context. It should be noted that for recognition and enforcement, however, Québec and Saskatchewan law maintain the first-to-file rule of lis pendens such that if a court (in either province) was first seised of a parallel action, no foreign judgment can be enforced there (see legislative references, above (n 89)). 92 See L Silberman, ‘Lis Alibi Pendens’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol I (Edward Elgar 2017). 93 Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1, Arts 29, 30 (prior proceedings in a Member State), subject to the exception for exclusive choice of court agreements in Art 31; Arts 33, 34 (prior proceeding in a non-Member State), subject to the exercise of the discretion of the court as further specified in the respective provisions. 94 The wording of some of the Convention provisions may be slightly different from the language of the Uniform Acts and/or some state statutes, and there potentially could be differing interpretations of certain grounds. 95 But see Garcimartín and Saumier (n 23) para 246, which explains that Art 7 is directed at States, not courts, leaving open the possibility that States will implement the Convention defences in different manners, including making all the defences mandatory grounds for non-enforcement in their courts. For a general discussion of the defences under the Convention, see Marcos Dotta Salgueiro, ch 4 in this volume. 96 s 483 of the Restatement (Fourth) of Foreign Relations (n 12), reflecting both the Uniform Acts as well as other law in the United States, provides that a court in the United States will not recognise a judgment of a court of a foreign state if: (a) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with fundamental principles of fairness; (b) the court that rendered the judgment did not have personal jurisdiction or subject matter jurisdiction; or (c) the judgment rested on a claim of defamation and the SPEECH Act forbids its recognition or enforcement. See also, 1962 Uniform Act (n 10) § 4(a)(1)–(3); 2005 Uniform Act (n 11) § 4(b)(1)–(3).

Perspectives from the US and Canada  177 unfairness in the foreign legal system – presents potential tension with respect to US ratification of the Convention.97 A court in the United States is required to refuse recognition or enforcement to a foreign judgment that results from a proceeding in an unfair and/or biased legal system. It is open to question, however, whether the Convention will permit a court in the United States to invoke the public policy ground to refuse recognition or enforcement if a court in the United States determines that the legal system and the tribunals in the particular country rendering the judgment are inconsistent with norms of fair process, without any need to show unfairness or bias in the specific proceedings giving rise to the foreign judgment. Nevertheless, the public policy defence specifically refers to ‘the public policy of the requested State’ and there is thus no requirement of uniformity in the scope of the defence among Contracting States.98 This understanding may well be sufficient to provide the United States room to refuse enforcement when there is a systemic violation of such norms and still be in compliance with the Convention. While there is no express mandatory rule of the same nature in Canada, non-enforcement based on public policy in similar circumstances could be expected in Canada as well.99 In connection with concerns about the fairness of a legal system, it is worth noting that the Convention includes a provision allowing a declaration to opt out of the Convention with respect to a particular State (Article 29). The declaration can be made only once, either at the time of a particular State’s ratification (in relation to other Contracting States), or, for Contracting States, at the moment of ratification by a new Contracting State (the declaration can be withdrawn at any time). The Convention does not prescribe the reasons for making such a declaration, leaving it entirely up to Contracting States. To the extent that the United States or Canada can identify a State (at the time of ratification) where the overall judicial system lacks fair tribunals and procedures, it can refuse to enter into a Convention relationship with that State. The opt out provides an additional though only partial response to this specific US concern.100

D.  Procedural Issues under Article 13 The HCCH 2019 Judgments Convention, in Article 13, leaves to the national law of the requested State the procedure for recognition or enforcement of the foreign judgment. However, subparagraph 2 provides that a requested State shall not refuse recognition or enforcement ‘on the ground that recognition or enforcement should be sought in another State’. Thus, the Convention does preclude a requested State from applying the doctrine of forum non conveniens at the recognition or enforcement stage. The exclusion of forum non conveniens in the foreign judgment recognition context should not be significant. Although one can find examples of cases where forum

97 With respect to the mandatory ground for non-recognition in the United States for lack of personal jurisdiction, each of the jurisdictional filters to determine the eligibility of a foreign judgment appears to meet US due process standards. In addition, foreign judgments based on other bases of personal jurisdiction that could present due process concerns for a court in the United States would not be ‘eligible’ judgments under the Convention that are entitled to enforcement. The mandatory ground relating to lack of subject matter jurisdiction looks to the subject matter jurisdiction of the foreign court and if the foreign court lacked subject matter jurisdiction, the judgment would not be one that is enforceable in the court of origin and therefore would not be subject to foreign recognition or enforcement under the Convention. As for mandatory non-recognition under the SPEECH Act, defamation judgments are excluded from the Convention. 98 See Garcimartín and Saumier (n 23) para 264. 99 The Supreme Court of Canada said as much, albeit in obiter, in Beals v Saldanha (n 42) 61–63). 100 For a further discussion of the limitations of the opt-out and potential solutions, see DAA Reisman, ‘Breaking Bad: Fail-Safes to the Hague Judgments Convention’ (2021) 109 Georgetown Law Journal 879. For a discussion of Art 29 of the Convention, see João Ribeiro-Bidaoui and Cristina M Mariottini, ch 5 in this volume.

178  Geneviève Saumier and Linda Silberman non conveniens has been invoked to dismiss an action brought to recognise and enforce a foreign country judgment,101 other courts in the United States have held the doctrine inapplicable in the judgment recognition context.102 In the Canadian context, there is scant jurisprudence on this issue103 and thus it should not be an impediment to ratification. Nothing in the text of Article 13 addresses the time period in which to bring an action for recognition and enforcement under the Convention. However, the Explanatory Report makes clear that the applicable limitation period is the one provided by the national law of the recognising State.104 In Canada, the result is a diversity of limitations periods since there is no uniformity on this issue across the country105 and the relevant rule will be the one of the province or territory where enforcement is sought.106 In the United States, the 2005 Uniform Act, unlike the 1962 Act, does contain a specific provision on the applicable statute of limitations. Section 9 of the 2005 Act provides that an action for recognition be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or 15 years from that date that the foreign-country judgment became effective in the foreign country.107 In states that do not have the 2005 Act, some courts have applied a state’s general statute of limitations while others have used the limitations period applicable with regard to enforcement of a domestic judgment.108

IV.  Part III: Ratification and Implementation Issues The discussion above indicates that implementation of the HCCH 2019 Judgments Convention has substantial benefits for recognition of US judgments109 and would largely be consistent with existing law in the United States. In the United States, any debate about ratification is over the method of implementation and not necessarily any substantive concern about the Convention.110

101 See, eg, Turksoy v Acar, 772 NYS2d 831 (2nd Dep’t 2004). 102 See, eg, Abu Dhabi Commercial Bank: JSC v Saad Trading, Contracting and Financial Services, Co, 986 NYS 2d 454 (1st Dep’t 2014); in Watary Services, Ltd v Law Kin Wah, 668 NYS2d 458 (1st Dep’t 1998) (holding that forum non conveniens is not available as a ground for non-recognition of a foreign judgment under the Uniform Act since it is not listed as one of the defences). 103 The Supreme Court of Canada, in Chevron Corp v Yaiguaje, 2015 SCC 42, 75, held that the jurisdictional conditions for actions on the merits do not apply to enforcement proceedings. The Court held that such proceedings can be brought on the basis of service of proceedings on the foreign judgment debtor, even in the absence of seizable assets in the enforcement jurisdiction (at 68). The Court did note that this does not exclude recourse to forum non conveniens in an enforcement proceeding (at 77). 104 Garcimartín and Saumier (n 23) para 310. 105 So, for example, the limitation period in British Columbia is 10 years (Limitation Act, SBC 2012, c 13, s 7) whereas in Ontario it is two years (Limitations Act, 2002, SO 2002, c 24, Sch B, s 4; the Ontario Court of Appeal held that the 10-year limitation period for judgment enforcement in the Act at s 16(1)(b) only applies to domestic judgments – Independence Plaza 1 Associates v Figliolini, 2017 ONCA 44, 66). The uniform statutes do include limitation periods – the Enforcement of Foreign Judgments Act establishes a 10-year limitation period while the Reciprocal Enforcement of Judgments Act sets this at six years. But as noted earlier, these have either not been widely adopted or do not extend to many foreign jurisdictions. 106 The Convention allows for the application of limitation periods for each province under Art 22 on non-unified legal systems. 107 2005 Uniform Act (n 11) § 9. 108 ibid, Comment. Moreover, states that adopt the 2005 Act may nonetheless choose a different limitations period. See, eg, Ala Code § 6-9-258 (five years rather than 15). 109 See Coco (n 15) 1241–43. 110 For a discussion of implementation options, see New York City Bar Report (n 27). See also Cardoso (n 27). It should be noted that the United States has signed but not ratified the Convention.

Perspectives from the US and Canada  179 Although the Convention contains a so-called ‘federal-state’ clause111 that allows ratification with respect to individual territorial units in States with non-unified legal systems (Article 25), the US constitutional structure indicates that an international treaty is operational throughout the United States under the Supremacy Clause of the Constitution.112 Accordingly, the most obvious method for implementation of an international treaty such as the HCCH 2019 Judgments Convention in the United States would seem to be the enactment of a federal statute.113 That approach is the optimum way to ensure uniformity of interpretation of the Convention as well as offering the possibility of enacting a broader uniform federal law for judgments that lie outside the Convention’s scope.114 However, some stakeholders – notably the Uniform Law Commission – urge implementation that would rest substantially on a revised Uniform State Law. They point to the fact that foreign judgment recognition has traditionally been a matter of state law and that courts already have substantial familiarity with the Uniform Acts. However, recognising the need for a role by the federal government to secure national compliance with an international treaty, they suggest implementation through a method of ‘cooperative federalism’. That approach would involve parallel legislation at the state and federal levels, where states promulgate uniform legislation and Congress passes federal legislation that provides guidance and incentives for states to adopt similar legislation. In effect, because federal legislation preempts conflicting state law under the Supremacy Clause of the Constitution, the federal legislation will apply unless the state has adopted legislation substantially the same as the federal. The drawbacks to this approach should be apparent: there are duplicative costs in passing nearly identical legislation 50-plus times, rather than just once through Congress. There are also accompanying administrative costs in drafting both uniform and pre-emptive laws, for monitoring states’ progress, and for amending laws in every jurisdiction in the event the legislation eventually requires updating.115 Moreover, having two almost identical laws applied at the federal and state levels are likely to cause confusion for litigants, particularly foreign litigants attempting to navigate the federalism aspects of US courts and US law. Finally, mere uniformity of text does not guarantee uniformity of adoption, implementation, or practice, and this two-tiered system does not necessarily have the requisite mechanisms in place to ensure true uniformity of implementation and interpretation. Notwithstanding the compelling argument for implementation through a federal statute, the issue of implementation remains one of ‘politics and turf ’, and unless resolved, the HCCH 2019 Judgments Convention may have a long wait for US ratification. The treaty implementation context is quite different in Canada. Negotiating, signing and ratifying a treaty is a federal executive power.116 However, where the substantive law involved

111 Such a clause has been important for Canada because, constitutionally, the treaty-making and treaty-implementing power in Canada is divided between federal and provincial authority. See H Allan Leal, ‘Federal State Clauses and the Conventions of the Hague Conference on Private International Law’ (1984) 8 Dalhousie Law Journal 257. 112 US Constitution, art VI, cl 2. 113 Although some private law treaties have been regarded as self-executing (without the need for additional legislation), self-execution is not likely when there is a need to clarify how the treaty and existing federal and state law are intended to interact. See T Schnabel, ‘Implementation of the Singapore Convention: Federalism, Self-Execution, and Private Law Treaties’ (2019) 30 American Review of International Arbitration 265, 279–85. For more on self-executing treaties, see also Restatement (Fourth) of Foreign Relations Law (n 12) § 310 and Comments (a)–(f). 114 See Silberman, ‘The 2019 Judgments Convention’ (n 90). For a more detailed analysis of what might be included in a federal implementation statute, see also New York City Bar Report (n 27). 115 See SB Burbank, ‘Federalism and Private International Law: Implementing the Hague Choice of Court Convention in the United States’ (2006) 2 Journal of Private International Law 287, 300. 116 See Allan Leal (n 111). Despite this, Canadian delegations to treaty negotiations typically include some provincial representatives.

180  Geneviève Saumier and Linda Silberman is constitutionally attributed to the provinces,117 as is largely the case with the HCCH 2019 Judgments Convention, implementation requires separate adoption of the treaty in each of the provinces and territories.118 In other words, there is no equivalent to the US Supremacy Clause or the option of implementation through a single federal statute in Canada. While Canada could ratify the Convention without all of the provinces and territories prepared to implement it, as is expressly permitted by Article 25 of the Convention, this approach is not desirable for political reasons and, in any event, would not be an ideal situation in terms of uniformity. This process also has its drawbacks as it requires convincing 13 jurisdictions of the utility of ratification and moving implementation statutes through all the legislatures.119 The attendant risks of inconsistent interpretation noted above in relation to the United States are avoided by the Supreme Court of Canada’s general jurisdiction which can ensure (eventually) uniform interpretation of the underlying treaty throughout the country.

V. Conclusion The HCCH 2019 Judgments Convention provides a cooperative mechanism for facilitating and harmonising the recognition and enforcement of foreign country judgments. In so doing, it increases predictability for transnational litigation and thus benefits international trade in the present and future global economy. The Convention is particularly attractive to Canada and the United States who both presently have quite liberal laws for the recognition and enforcement of other countries’ judgments. The Convention, by removing certain substantive and procedural hurdles in connection with the recognition of foreign country judgments, will help to remedy the imbalance that has often existed with respect to the recognition and enforcement of US and Canadian judgments abroad. Moreover, the standards adopted in the Convention’s comprehensive framework are largely consistent with existing law in the United States and Canada, and at the same time leave substantial flexibility for national law to construct even more generous recognition and enforcement regimes. Whether these reasons will be sufficient to overcome federalism hurdles to ratification in both countries remains to be seen.

117 With some exceptions relating to intellectual property or maritime law, for example, although these are largely excluded from the Convention under Art 2. 118 The three federal territories (Yukon, Nunavut and the Northwest Territories) have delegated competence over this area and thus would also have to implement the Convention in their jurisdiction. 119 The Uniform Law Conference of Canada has recently commissioned a report on implementing the Convention, which signals some movement in that direction.

9 Perspectives from the Arab World BÉLIGH ELBALTI*

I. Introduction This chapter examines the possible impact of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (hereafter, the HCCH 2019 Judgments Convention or the Convention) adopted on 2 July 2019 by the Hague Conference on Private International Law (hereafter, HCCH)1 on the Arab countries of the Middle East and North Africa (hereafter MENA Arab jurisdictions). It aims in particular to investigate the possible challenges and potential barriers that are likely to hinder the ratification of the Convention by the MENA Arab jurisdictions. For the purpose of this chapter, MENA Arab jurisdictions refer to the 22  Member States of the League of Arab States (hereafter LAS).2 This chapter will first proceed by providing a detailed overview of the domestic enforcement3 systems in the MENA Arab jurisdictions in section II, and the complex convention-based enforcement regimes in section III. Thereafter, section IV will address the possible interplay between the HCCH 2019 Judgments Convention with the existing enforcement regimes. Then, section V will briefly outline some external impediments to the adherence of the MENA Arab jurisdictions. Finally, some concluding remarks will be made.

II.  Domestic Enforcement Systems in MENA Arab Jurisdictions A. Codifications All MENA Arab jurisdictions have enacted black-letter rules dealing with the enforcement of foreign judgments. As Table 1 below shows, the majority of MENA Arab jurisdictions have included their rules on the enforcement of foreign judgments in their respective codes of civil

* Associate Professor, Graduate School of Laws and Politics – Osaka University. 1 Details are available at: www.hcch.net/. 2 However, Somalia, Djibouti, Comoros and Sudan will be excluded due to the difficulty to have sufficient information about the enforcement law and practice in those countries. Also, this study does not include the enforcement law of other Middle Eastern or Islamic countries such as Israel, Iran or Turkey. Finally, this study does not address the enforcement systems in the ‘free-zone jurisdictions’ created in some MENA Arab countries, such as the Dubai International Financial Center (DIFC). 3 Reference will be made here to ‘enforcement’ rather than ‘recognition’. See below, section II.B.i.

182  Béligh Elbalti procedure. A minority of jurisdictions have either enacted a special Act dealing with the issue of enforcement of foreign judgments (Iraq and Jordan) or included the enforcement rules in an independent Act dealing with civil execution in general (Palestine, Saudi Arabia and recently Bahrain).4 Only Tunisia has enacted a comprehensive code on private international law (hereafter CPIL) which contains a chapter dealing with the enforcement (and some other effects) of foreign judgments.5 Table 1  Domestic Legislation on the Enforcement of Foreign Judgments Jurisdiction

Code/Act/Regulation

Provisions

UAE

2022 Code of Civil Procedure

[CCP]6

Arts 222–25

BAH

2021 Legislative Decree enacting the Law on Execution in Civil and Commercial Matters (Legislative decree No 22 of the year 2021) [LECCM]

Arts 16–18

SYR

2016 Code of Civil Procedure [CCP]

Arts 308–13

SA

2012 Execution Act [EA]

Arts 11–14

ALG

2008 Code of Civil and Administrative Procedure [CCAP]

Arts 605–08

PAL

2005 Execution Act [EA]

Arts 36–39

YEM

2002 Code of Procedure and Enforcement [CPE]

Arts 491–97

OMA

2002 Code of Civil and Commercial Procedure [CCCP]

Arts 352–55

MAU

1999 Code of Civil, Commercial and Administrative Procedure [CCCAP]

Arts 303–04

TUN

1998 Code of Private International Law [CPIL]

Arts 11–8

QAT

1990 Code of Civil and Commercial Procedure [CCCP]

Arts 379–83

LEB

1983 Code of Civil Procedure [CCP]

Arts 1009–24

SUD

1983 Code of Civil Procedure [CCP]

Arts 288–90

KUW

1980 Code of Civil and Commercial Procedure [CCCP]

Arts 199–203

MOR

1974 Code of Civil Procedure [CCP]

Arts 430–32

EGP

1968 Code of Civil and Commercial Procedure [CCCP]

Arts 296–301

LIB

1953 Code of Civil and Commercial Procedure [CCCP]

Arts 405–11

JOR

1952 Enforcement of Foreign Judgments Act [EFJA]

Arts 1–11

IRQ

1928 Enforcement of Foreign Courts Judgments Act [EFCJA]

Arts 1–12

4 Originally the enforcement rules in Bahrain were included in the 1971 Code of Civil and Commercial Procedure (former arts 252–55). Except for some modifications, the rules have remained largely unchanged. 5 In fact, Kuwait was the first MENA Arab jurisdiction to enact a comprehensive law dealing extensively with the main topics of private international law, ie, international jurisdiction, foreign judgments and applicable law (Law No 5/61 of 14 February 19601 on Regulation of the Legal Relationships with Foreign Element). However, in 1980, rules pertaining to international jurisdiction and foreign judgments were moved to the Kuwaiti CCP as indicated in Table 1 above. cf B Alghanim, ‘The Enforcement of Foreign Judgments in Kuwait’ (2020) 16 Journal of Private International Law 493, 500. 6 The new 2022 Code of Civil Procedure (Legislative Decree No. 42 of 2022 adopted on 3 October 2022 and became effective on January 2, 2023) abolished the existing code of civil procedure of 1992 and its Exectutory Regulation (Cabinet Decision No. 57 of 9 December 2018). The new 2022 CCP did not introduce any particular modification with respect to the enforcement of foreign judgments regime.

Perspectives from the Arab World  183

B.  General Framework Some general remarks deserve to be made first with respect to the distinction between recognition and enforcement, the types of ‘judgments’ entitled to enforcement, and the principle of prohibition of review of the merits.7

i.  Enforcement versus Recognition The MENA Arab codifications refer mainly to ‘enforcement’ but not ‘recognition’.8 It is no surprise then that in most MENA Arab jurisdictions, ‘recognition’ is not automatic and depends on a prior exequatur declaration.9 Lebanon however is an exception. Indeed, article 1012 of the Lebanese CCP explicitly refers to effects produced by foreign judgments without being subject to exequatur. The rule is however limited to the effect produced by foreign judgments in matters relating to status and capacity.10 In some jurisdictions, notably in Egypt, one can come across cases in which courts accepted that ‘recognition’ be admitted even in the absence of a prior exequatur declaration.11 In Tunisia, the CPIL contains provisions dealing with ‘non-recognition’ and ‘non-­opposability’ in addition to ‘enforcement’12 but does not explicitly refer to ‘recognition’. Yet, article 482 of the Code of Obligation and Contracts of 1906 – which the CPIL failed to abrogate – clearly states that foreign judgments should not be treated as res judicata unless they are declared enforceable by Tunisian courts. In literature, it is often contended that foreign judgments are automatically recognised in Tunisia.13 Scholars usually refer, inter alia, to article 13 CPIL in support of their opinion despite its confusing formulation.14 However, it is doubtful whether article 13 CPIL could serve as a legal basis for automatic recognition. Article 13 indeed allows the registration [idrāj (in Arabic) – transcription (in French)] in the civil status register of acts of civil status established abroad as well as final judgments without any exequatur proceedings being required.15

7 Unless otherwise indicated, all cited decisions or excerpts therefrom are on file with the author. The cited decisions also include the enforcement of foreign judgments rendered in family law disputes. For the sake of simplicity, all highest courts will be called ‘Supreme Court’. It should be indicated however that in the UAE, there are four ‘Supreme Courts’. The UAE Federal Supreme Court; the Dubai and Abu Dhabi Supreme Courts are the main ones and their case law is cited here. 8 See B Elbalti, ‘The Recognition and Enforcement of Foreign Filiation Judgments in Arab Countries’ in N Yassari et al (eds), Filiation and the Protection of Parentless Children (TMC Asser Press 2019) 377. 9 See, eg, Algeria (Supreme Court Ruling No 655755 of 14 July 2011 considering that giving effect to foreign judgment without a prior exequatur declaration constitutes a violation of national sovereignty). 10 Also, art 1010 CCP states that foreign judgments can be produced as evidence and can also serve as a title basis for carrying on some measures such as seizure for security without being subject to exequatur procedure. See M-C Najm, ‘The Enforcement of Foreign Judgments in Lebanese Private International Law’ (2015/16) 17 Yearbook of Private International Law 463, 466–67. 11 See, eg, Egyptian Supreme Court Case No 45 of 26 June 1963 (personal status); Case No 2950 of 12 March 2012 (monetary judgment). However, the Constitutional Court has ruled in the opposite sense in one of its rulings relating to parallel proceedings (Case No 46 of 6 June 2010). See generally K El Chazli, ‘Recognition and Enforcement of Foreign Decisions in Egypt’ (2013/14) 15 Yearbook of Private International Law 387, 407–08. 12 Arts 14 and 15 CPIL deal respectively with ‘non-recognition’ and ‘non-opposability’. Art 16 deals with requests of non-recognition, non-opposability as well as enforcements. 13 cf eg, S Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (CPU 2017) 67 ff. 14 Also, according to the prevailing view in Tunisia, since CPIL admits requests for non-recognition, this means that ‘recognition’ is presumed’. cf Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (n 12) 69. 15 cf art 42 of the 1957 Act on Civil Status which has similar content, though limited to the registration (tarsīm (in Arabic) – transcription (in French)) of foreign divorce judgments rendered abroad.

184  Béligh Elbalti Even if one reads ‘registration’ in article 13 as to mean ‘recognition’, the very same provision specifies that this should not apply to foreign judgments relating to personal status whose ‘registration’ remain subject to a prior declaration of enforceability.16 In any event, the fact that the two notions are not clearly distinguished often leads to inconsistencies in case law or confusion in the use of the appropriate approach.17 In the UAE, for example, some rulings explicitly denied effect to foreign judgments that were not declared enforceable,18 whereas others accepted those effects even without an exequatur declaration.19 Other cases suggest that recognition can take place incidentally if some conditions are satisfied, notably when the foreign judgment is final and conclusive according to the law of the rendering State and if it was rendered between the same parties on the same subject matter and cause of action.20 In Morocco, the Supreme Court relied on article 418 of the Code of Obligations and Contracts of 1913 – which deals only with the evidentiary weight of judgments (force probante)21 – to confer legal force to foreign judgments despite their not being declared enforceable.22

ii.  Judgments and Other Titles In almost all MENA Arab jurisdictions, rules on the enforcement of foreign judgments apply indistinctively to judgments rendered in ‘civil and commercial’ matters in the sense of article 1 of the HCCH 2019 Judgments Convention, as well as judgments rendered in family disputes and succession.23 Iraqi law, however, is a notable exception. In effect, article 6(c) EFCJA explicitly limits enforcement to judgments on debts, definite sums of money or civil compensation, thus a priori excluding non-monetary judgments from the scope of application of the Act.24 16 Scholars in Tunisia almost unanimously criticise the distinction between ‘judgment relating to civil status’ and ‘judgments relating to personal status’ and point out that the two notions often overlap as this is the case of divorce or adoption judgments. cf Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (n 13) 68–69. Case law in Tunisia is inconsistent on this issue. See, eg, the Tunis Court of Appeal Ruling No 15886 of 13 April 2004 in which the Court accepted the res judicata effect of a foreign divorce judgment after considering that art 13 CPIL constituted an exception to art 482 COC. The Court, which arguably relied on the first half of the provision ignoring its second part, overlooked that art 13 does not deal with res judicata effect, but only with ‘registration’. 17 See, eg, Kuwait (Supreme Court Case No 521 of 13 October 2008 rejecting the defence of the defendant based on the foreign judgment on the ground that the defendant did not request the enforcement of the foreign judgment, but contra Supreme Court Case No 648 of 28 January 2010); Tunisia (Tunis Court of Appeal Ruling No 72565 of 2 May 2001, considering that the foreign judgment declaring void a document of civil status had not effect in Tunisia before its being declared enforceable, but contra Tunis Court of Appeal Ruling No 15886 (n 16)). 18 See, eg, Federal Supreme Court Case No 320 of 18 April 1995 (considering that the foreign insolvency decree could not be relied on since there was no proof that it was declared enforceable); Case 326 of 27 June 2006 (considering that a foreign bankruptcy judgment could not have effect prior its being declared enforceable); Abu Dhabi Supreme Court Case No 31 of 7 December 2016 (stating that foreign judgments have legal authority (ḥujjia) only after being declared ­enforceable and are not contrary to public policy). 19 See, eg, Dubai Supreme Court Case No 16 of 14 April 2009; Case No 415 of 20 December 2021. 20 See, eg, Federal Supreme Court Case No 208 of 7 October 2015; Dubai Supreme Court Case No 276 of 7 April 2009; Abu Dhabi Supreme Court Case No 106 of 11 May 2016; Case No 11 December 2019. 21 Art 418 simply allows the use of foreign judgments as evidence even in the absence of exequatur. 22 See, eg, Supreme Court Ruling No 452 of 15 October 2003; Ruling No 268 of 17 May 2011; Ruling No 250 of 25 March 2014; Ruling No 115 of 10 March 2020. Although the majority of cases rendered by the Moroccan Supreme Courts concern family law disputes, the Court also applied the same approach to monetary judgments. See, eg, Ruling No 54 of 26 January 2017 concerning the challenge of a Garnishment order of a bank account based on a foreign (Italian) judgment. Relying on art 418, the Court admitted the legality of the garnishment by stating that foreign judgments should be deemed conclusive of the fact they established. 23 Thus, all categories of foreign judgments (excluding judgments rendered in criminal procedure and public law generally with the exception of those awarding civil damages) are subject to the same enforcement regime. 24 cf Elbalti, ‘The Recognition and Enforcement of Foreign Filiation Judgments’ (n 8) 377.

Perspectives from the Arab World  185 In addition, almost all the codifications of the region extend the enforcement regime to authentic instruments, public acts and/or judicial settlements if certain conditions are met.25 In Tunisia, although the CPIL does not refer to the enforcement of authentic instruments, public acts or judicial settlements, scholarly opinions are largely favourable to extending the enforcement regime to ‘foreign decisions’ regardless of their nature (judicial or not).26 Finally, some of the Arab codifications explicitly subject the enforcement of foreign arbitral awards to the same regime applicable to the enforcement of foreign judgments.27

iii.  Prohibition of the Review of the Merits As a matter of principle, the prohibition to review the merits of the foreign judgment is a well-established principle in all the MENA Arab jurisdictions.28 This echoes article 4(2) of the HCCH 2019 Judgments Convention. It should be noted, however, that Arab courts might not occasionally observe the principle of prohibition.29 In some jurisdictions, révision au fond may be practised, at least theoretically, as a matter of reciprocity, especially in jurisdictions where reciprocity is understood as ‘equal treatment’ (see below section II.C.ii.d). This would be the case for example when the enforcement of foreign judgments in the rendering State depends on their being reviewed as to their merits.30 In addition, a limited review on the merits is adopted in Lebanon in certain situations specified in article 1015 CCP, especially where the judgment is obtained by fraud (see below section II.C.iii.a).

25 See Bahrain (art 17 ERCCP); Egypt (art 300 CCCP); Kuwait (arts 201–2002 CCCP); Libya (art 410 CCCP); Oman (art 354 CCCP); Palestine (art 39 EA); Qatar (art 382 CCCP); Syria (art 312 CCP); UAE (art 224 CCP); Yemen (art 495 CPE) requiring the following conditions for the enforcement of authentic instruments and titles: (i) the reciprocity rule, ie, the foreign title fulfils the same conditions required by the law of the State where the title was established for the enforcement of the requested State’s titles; (ii) the title is authentic and enforceable under the law where it was ­established; and (iii) the title is not contrary to public policy. See also, Algeria (art 606 CCAP); Lebanon (arts 1023–24 CCP); Mauritania (art 303 CCCAP); Morocco (art 432 CCP); Saudi Arabia (art 13 EA). 26 See, eg, Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (n 13) 45–56. Case law is unsettled on this issue. 27 See, eg, Egypt (art 299 CCCP); Jordan (art 2 EFJA); Kuwait (art 200 CCCP); Libya (art 408 CCCP); Oman (art 353 CCCP); Palestine (art 38 EA); Qatar (art 381 CCCP); Saudi Arabia (art 12 EA); Syria (art 311 CCP); UAE (art 223 CCP). The adoption of special laws dealing with arbitration in some of these countries is likely to cause delicate articulation problems with different applicable rules. See, eg, for Egypt, I Shehata, Arbitration in Egypt: A Practioner’s Guide (Kluwer Law International 2021) 347 ff. 28 See, eg, Kuwait (Supreme Court Case No 85 of 30 October 2011); Jordan (Supreme Court Ruling No 1921 of 21 February 2011); Saudi Arabia (Board of Grievances Case No 84/D/F/9 of 25 Safar 1434 Hegira [7 January 2013]); Tunisia (Supreme Court Ruling No 378 of 21 December 2004, Ruling No 47837 of 30 September 2010). 29 This can take place under the cover of public policy. See, eg, Saudi Arabia (Board of Grievances Case No 1783/1/Q of 30 Jumada Al-Akhira 1417 [12 November 1996]; see also Case No 1645/1/Q of 25 Shaban 1416 Hegira [16 January 1996] considering after reviewing the foreign judgment’s content that the foreign court’s decision to declare void the ­litigious contract in application of its law was consistent with Sharia principles). For family law judgments, see, eg, Morocco (Supreme Court Ruling No 188 of 30 March 2005 examining the content of a foreign divorce judgment before declaring it consistent with the Moroccan domestic law of divorce and therefore did not violate Moroccan public policy); Tunisia (Tunis Court of First Instance, Judgment No 22591 of 14 December 2001. In this case, although the court affirmed the principle of the prohibition of révision au fond, it nevertheless considered that the foreign judgment wrongly evaluated Tunisian divorce law by assimilating it with classical Islamic divorce, and therefore violated Tunisian public policy). 30 As a good example of this, see the Supreme Court of Kuwait ruling in cases No 642 and 660 of 29 November 2005. Although this ruling is not concerned with révision au fond, it illustrates how reciprocity operates as a mutual treatment principle. See Alghanim (n 5) 503–04.

186  Béligh Elbalti

C.  Enforcement Requirements The reader of the different Arab States’ enforcement rules will notice without difficulty their high degree of similarity although some important differences can still be found. The enforcement requirements in the MENA Arab region can be grouped as follows: (i) requirements that are explicitly stated in the legislation of all MENA Arab jurisdictions; (ii) those that are explicitly stated in the legislation of the majority but not all MENA Arab jurisdictions; and (ii) others that are explicitly stated in the legislation of only a few MENA Arab jurisdictions.31

i.  Requirements that are Explicitly Stated in the Legislation of All MENA Arab Jurisdictions a. Finality Unlike the HCCH 2019 Judgments Convention,32 MENA Arab codifications usually state that foreign judgments can be enforced if they become final and conclusive under the law in the State where they were rendered.33 Although different terminologies are often used to refer to the finality of the foreign judgment,34 they are commonly understood to mean that the foreign judgment is no longer subject to an ordinary appeal.35 Lebanese law, however, explicitly allows under some conditions the enforcement of temporary judgments when they are enforceable in the State of origin.36 In Tunisia, since the CPIL explicitly refers only to the ‘enforceability’ of the foreign judgment, it is argued in literature that enforcement can be granted if it is shown that the foreign judgment can be executed in its country of origin regardless of whether it is subject to appeal or not.37 Tunisian courts however have often evoked the notion of irrevocability (quwat 31 This section is based, with modifications and updates, on B Elbalti, ‘The Recognition of Foreign Judgments as a Tool of Economic Integration: Views from Middle Eastern and Arab Gulf Countries’ in P Sooksripaisarnkit and S Ramani Garimella (eds), China’s One Belt One Road Initiative and Private International Law (Routledge 2018). 32 It is admitted that the Convention does not require that the foreign judgment be final and conclusive. See, F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH, 2020) para 129. On this requirement, see the contribution of Wolfgang Hau, ch 2 in this volume. 33 See, eg, Bahrain (Supreme Court Ruling No 939 of 6 January 2020 stating that the finality should be considered according to the law of the rendering State); UAE (Federal Supreme Court Case No 153 of 7 March 2004, Abu Dhabi Supreme Court Case No 885 of 12 October 2011 stating the foreign judgment was final according to the rendering State’s law). 34 These include: ‘irrevocability’ (al-amr [or al-shay] al-maqdhi [or al-maḥkūm] bihi – force de la chose jugée) as used in Algeria, Egypt, Kuwait, Libya, Palestine, Yemen, Qatar, UAE, Syria and Lebanon; ‘conclusive’ (al-qat’iyya) as used in Bahrain and Jordan; ‘validity/regularity’ (ṣiḥḥa) as used in Morocco (though the term is also used to refer to procedural regularity such as due process); ‘finality’ (nihā’i) as used in Oman, Sudan and Saudi Arabia; ‘effective’ (nāfidh) as used in Mauritania; or ‘enforceability’ (tanfidh) as used in Lebanon, Iraq and Tunisia. 35 See, eg, Egypt (Supreme Court Case No 45 (n 10)); Kuwait (Supreme Court Case No 469 of 11 May 2009 rejecting the request to stay the enforcement proceedings on the ground that an appeal before the foreign Supreme Court was lodged considering that the foreign judgment satisfied the requirement of finality; Case No 69 of 12 June 1999 considering that finality is not affected by an extraordinary appeal brought against the judgment to be enforced); Saudi Arabia (Board of Grievances Case No 1073/1/Q of 28 Dhu Al-Hajja 1416 Hegira [16 May 1996] accepting the enforcement of a foreign judgment after considering that the appeal before the foreign Supreme Court was an extraordinary appeal that could not provide a stay of the execution). See also art 431(3) of the Moroccan CCP, which requires that the party seeking enforcement produce among others a certificate by the competent tribunal officer (kitābat al-ẓabt (ar), greffe (fr)) that the judgment is not subject to opposition or appeal (either before the Court of Appeal or the Supreme Court). 36 Art 1014(b) CCP. See, eg, Lebanese Supreme Court Ruling of 30 December 2003; Beirut Court of Appeal Ruling of 1 April 2008. 37 cf eg, Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (n 13) 155–57; N Gara, Private International Law (Latrach Edition 2021) 134 (in Arabic). The Supreme Court Ruling No 57886 of 21 February 2012 seems to be in line with this opinion.

Perspectives from the Arab World  187 ittisal al-qadhā’ – force de la chose jugée), albeit incidentally, or considered whether the foreign judgment was still subject to ordinary appeal when they examined exequatur requests.38 b.  Indirect Jurisdiction Despite the fact that the jurisdictional requirement is admitted in the legislation of all MENA Arab jurisdictions, the standard based on which the indirect jurisdiction of the foreign court should be examined differs. Some MENA Arab jurisdictions require that the jurisdictional control be made by reference to the law of rendering State.39 Others require double control according to the law of the rendering State and the law of the forum.40 Only a minority of countries have adopted different approaches. For example, Iraqi law, and to a certain extent, Jordanian law identify the cases where the foreign court would be regarded as having jurisdiction for enforcement purposes.41 In Morocco, Algeria, and Mauritania, the law does not specify the standard based on which the jurisdiction of the foreign court should be examined, although some court decisions suggest this should be made by reference to the law of the State addressed.42 Tunisia stands alone in the region by limiting the jurisdictional control only to cases that fall under the exclusive jurisdiction of Tunisian courts.43 This has led Tunisian scholars to conclude that the jurisdictional requirement was completely abolished in Tunisia.44 Finally, unlike almost all other MENA Arab jurisdictions,45 the law of the UAE explicitly requires also that the court issuing the foreign judgment be the competent court according to its internal rules of jurisdiction.46

38 See, eg, Tunis First Instance Court Judgment No 42716 of 7 October 2002; Tunis First Instance Court Judgment No 39768 of 28 January 2002; Tunis First Instance Court Judgment No 45297 of 2 June 2005; Tunis Court of Appeal Ruling No 15886 (n 16). 39 Notably, Syria, Oman, Lebanon, Libya and Kuwait. See, eg, Lebanon (Supreme Court Ruling No 36 of 2 March 1999 and Ruling No 28 of 8 November 2010 stating that the rendering courts (French and Abu Dhabi courts respectively) had jurisdiction according to their laws); Kuwait (Supreme Court Case No 842 of 18 October 2003 confirming the indirect jurisdiction of the rendering Emirati court according to that court’s law, although the judgment debtors argued that Kuwaiti courts should be competent as the place where the defendants had their domicile). 40 Notably Bahrain, Egypt, Palestine, Saudi Arabia, Yemen and Jordan. See, eg, Saudi Arabia (Board of Grievances Case No 1123/4/Q of 13 Dhu Al-Qadah 1430 Hegira [1 November 2009] referring to its rules of direct jurisdiction to reject the indirect jurisdiction of Egypt on the ground, inter alia, that the accident occurred in Saudi Arabia). In Qatar (art 380(1) CCP) and UAE (art 222(2)(a) CCP), it is expressly indicated that the jurisdictional control based of the law of the State addressed concerns only cases where the courts of the State do not have exclusive jurisdiction. 41 See, eg, Jordan (Supreme Court Ruling No 1351 of 27 November 2014, Ruling No 2892 of 3 December 2006 refusing to enforcement request after concluding, inter alia, that the grounds of indirect jurisdiction provided for in art 7(b) EFJA were not satisfied); Iraq (Supreme Court Ruling No 1658 of 21 September 1957 admitting the indirect jurisdiction of the rendering courts based on the rules laid down in art 7 EFCJA). 42 See, eg, Algeria (Supreme Court Ruling No 402333 of 12 March 2008); Morocco (Rabat Court of Appeal Ruling of 2 April 1928, but compare, with a recent Supreme Court decision of 23 February 2012 suggesting that the control should be made in accordance with the law of the State of origin). No reference on Mauritanian law could be found. 43 See art 11(1) CPIL. Grounds of exclusive jurisdiction are limitedly laid down in art 8 CPIL. See I Gallala-Arndt, ‘Tunisia’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol 3 (Edward Elgar 2017) 2587, 2589. 44 For detailed critical analyses with references to Tunisian literature, see B Elbalti, ‘The Jurisdiction of Foreign Courts and the Enforcement of their Judgments in Tunisia: A Need for Reconsideration’ (2012) 8 Journal of Private International Law 195, 200–02. For recent Tunisian Supreme Court decisions in line with the doctrinal interpretation, see, eg, Ruling No 19093 of 3 December 2015, and Ruling No 25687 of 20 January 2016. 45 The law of Jordan is not clear on this point, although the wording of the applicable provision suggests that a solution similar to that found in the UAE is adopted. See Elbalti, ‘The Recognition of Foreign Judgments as a Tool of Economic Integration’ (n 31) 227–28. However, this is not the case elsewhere. See, eg, Kuwait (Supreme Court Case No 230 of 8 June 2002 considering that the territorial or subject matter jurisdiction of the foreign rendering court should not be examined). 46 Art 222(2)(a) [general indirect jurisdiction] and (b) [internal rules of jurisdiction] CCP. For a case law application of this provision (former Art 235(2)(b) CCP), see Dubai Supreme Court Case No 114 of 26 October 1993.

188  Béligh Elbalti In addition, except for Tunisia, all MENA Arab jurisdictions do not specify the cases over which their courts would exercise exclusive jurisdiction, and the issue remains to a certain degree unsettled.47 The issue can be of particular importance since some MENA Arab jurisdictions consider their rules of international jurisdiction as imperative (d’ordre public). This implies that where the dispute falls under the jurisdiction of the enforcing court in application of its rules of direct jurisdiction, the foreign rendering court would not be regarded as a court of competent jurisdiction.48 It also means that the jurisdictional rules cannot be derogated from by agreement.49 Consequently, choice of court agreements in favour of foreign courts can be considered invalid or deprived of legal effects.50 In some MENA Arab jurisdictions, however, jurisdictional clauses designating foreign courts are admitted under some conditions.51 Therefore, judgments rendered by the court chosen by the parties are likely to be considered as rendered by a competent court.52 Unlike the law of MENA Arab jurisdictions, the HCCH 2019 Judgments Convention sets out a limited list of grounds based on which foreign judgments would be entitled to recognition and enforcement.53 The differences between the Convention and the law of MENA Arab jurisdictions are potentially problematic. This point will be succinctly addressed below (section IV.A). c.  Public Policy Similarly to the HCCH 2019 Judgments Convention, all MENA Arab codifications admit public policy as a ground for non-enforcement.54 However, it is not always clear whether MENA Arab 47 However, there is a general agreement that cases relating to immovables are subject to the exclusive jurisdiction of the court of the State where the immovable is located. Yet, there is a disagreement on whether such an exclusive jurisdiction should cover all actions relating to the immovable or whether that should be limited only to in rem actions. See, eg, Kuwait (Supreme Court Case No 311 of 11 March 1990); UAE (Dubai Supreme Court Case No 19 of 28 March 2010) each discussing the distinction for the purpose of direct jurisdiction. Other matters can also be regarded as falling within the exclusive jurisdiction of the national courts, such as disputes relating to shipping and maritime transportation (Jordan Maritime Commercial Law of 1972, art 215) or disputes relating to commercial agencies. For a detailed analysis, see N Hage-Chahine, ‘L’agence commerciale dans le droit international privé des pays arabes’ (2014/16) 73 Proche-Orient, Etudes juridiques 62. 48 See, eg, UAE (Federal Supreme Court Case No 60 of 11 December 2004, Dubai Supreme Court Case No 114 of 26 September 1993, Case No 240 of 27 July 2017, Case No 468 of 14 December 2017, Abu Dhabi Supreme Court Case No 71 of 15 April 2019); Egypt (Supreme Court Case No 6594 of 17 September 2018). However, contra UAE (Abu Dhabi Supreme Court Case No 935 of 29 January 2010, Case No 36 of 28 November 2007); Egypt (Supreme Court Case No 1136 of 28 November 1990). 49 This is expressly stated in art 23 of the the new CCP of the UAE, according to which ‘any agreement contrary to the provisions of this section [rules of international jurisdiction] shall be void’. 50 See, eg, Algeria (Supreme Court Ruling No 120612 of 27 September 1994, Ruling No 1157488 of 9 February 2017); Bahrain (Supreme Court Case No 255 of 13 February 2006); Iraq (Supreme Court Ruling No 880 of 27 June 1971, but contra Baghdad Court of Appeal Ruling No 1483/C3/2015 of 3 January 2016); Jordan (Supreme Court Case No 2052 of 11 August 2002, Case No 2149 of 21 August 2006); Kuwait (Supreme Court Case No 436 of 12 May 2007); Palestine (Court of Appeal Ruling No 251/2010 of 11 November 2011); Qatar (Supreme Court Case No 62 of 14 June 2011, Case No 226 of 25 December 2012); Syria (Supreme Court Case No 209 of 13 February 1998); UAE (Federal Supreme Court Case No 318 of 12 November 1996, Case No 747 of 17 July 2013); Egypt (Supreme Court Case No 9139 of 22 June 2015 as well as Case No 6594 (n 48) denying the derogative effect of a choice of court agreement on the ground that Egyptian courts’ jurisdiction was conferred to them ex lege. But, see contra Supreme Court Cases No 15807 and No 15808 of 24 March 2014 and Case No 6423 of 24 February 2020. However, this solution seems to be the result of the fact that Egyptian courts’ jurisdiction was not sufficiently justified). 51 Morocco (Supreme Court Ruling No 838 of 9 June 2011); Lebanon (Supreme Court Ruling No 5 of 10 February 1987, Ruling No 36 of 9 July 1992); Tunisia (Supreme Court Ruling No 52686 of 2 November 2017). 52 See, eg, Tunisia Supreme Court No 62953 of 28 November 2018; Ruling No 55204 of 24 September 2018. For an older case, see Court of First Instance of Tunis Judgment No 18969 of 5 March 1988. 53 Arts 5 and 6. For details, see the contribution of Pietro Franzina, ch 3 in this volume; Garcimartín and Saumier (n 32) para 134 ff. 54 Art 7(c). For details see the contribution of Marcos Dotta Salgueiro, ch 4 in this volume; Garcimartín and Saumier (n 32) para 258 ff.

Perspectives from the Arab World  189 courts and legislation clearly distinguish between domestic and international public policy. Under Tunisian law, the distinction is made clear in the CPIL and acknowledged in the case law of the Supreme Court.55 However, in other countries reference can be made to domestic public policy considerations in order to reject the recognition of foreign judgments.56 This would be the case for example when a court confuses the meaning of public policy as involving domestic mandatory rules with public policy in the international sense.57 The main concern regarding public policy in the MENA region relates to the influence of Sharia rules and principles on its content.58 Indeed, whether to consider a judgment rendered in a MENA Arab jurisdiction applying rules deviating from traditional Sharia principles as inconsistent with public policy largely depends on the country concerned. This is because the influence of Islamic Sharia rules and principles varies greatly from one MENA Arab jurisdiction to another.59 For example, courts in Saudi Arabia appear to be more eager to scrutinise foreign judgments, even those rendered in civil and commercial matters, in the light of the Sharia rules and principles admitted in the Kingdom.60 Therefore, the part of the foreign judgment ordering the payment of legal interests or the foreign award for lost profit and moral damages was considered inconsistent with Sharia principles and consequently inconsistent with public policy.61 Similarly, Saudi judges found that the foreign judgment ordering the payment of compensation for breach of contract of sale of songs/music CDs and disks was considered inconsistent with Sharia principles which, according to the judges, prohibits music and all transactions related thereto.62 On the other hand, Saudi courts found that a judgment rendered by a non-Muslim

55 The CPIL uses the terminology of ‘public policy in the sense of private international law’ in art 11(3) [enforcement of foreign judgments] and art 36 [choice of law]. See also, Supreme Court Ruling No 26896 of 6 January 2016; Supreme Court Ruling No 47837 (n 28). 56 eg, UAE courts quite often associate art 3 Federal Civil Transactions Act (FCTA, see definition below (n 171)) with public policy in the sense of private international law in order to justify either the exclusion of the foreign law or the refusal to enforce foreign judgments. See, eg, Dubai Supreme Court Case No 131 of 13 August 2020; Federal Supreme Court Case No 104 of 30 September 2015 (the case concerns however the execution of judicial delegation). 57 See, eg, Kuwait (Supreme Court Case No 85 (n 28)) considering the foreign judgment ordering the payment of legal interest rate in commercial matters (9% annually) in application of the foreign (Emirati) law was against public policy (in the international sense) because the rule limiting interest (7% annually) in Kuwait was rule of public policy (ie, mandatory) the violation of which could not be accepted. 58 Only Yemen expressly refers to Sharia rules independently from public policy (art 494(1) CPE). In Saudi Arabia, the Executive Regulation of the EA clarifies that ‘public policy’ referred to in art 11(5) EA means ‘Islamic Sharia’. 59 See Elbalti, ‘The Recognition of Foreign Judgments as a Tool of Economic Integration’ (n 31) 231–32; Elbalti, ‘The Recognition and Enforcement of Foreign Filiation Judgments’ (n 8) 378. 60 See, eg, Board of Grievances Case No 1072/1/Q of 11 Ramadan 1408 Hegira [28 April 1988] (stating that Saudi Arabia is a State that completely relies in its orders and regulations on the Islamic Sharia where Islam is the only source of legislation, therefore the foreign judgment whose enforcement is sought in the Kingdom should not violate Islamic Sharia, national regulations and public policy and good morals); Case No 1783/1/Q of 12 November 1996 (n 29) (stating that since Islamic Sharia is the Constitution and the supreme reference for the Judiciary in the Kingdom, it is not possible, under any circumstances, to accept the enforcement of a foreign judgment that violates one of the principles of the Sharia). 61 On the payment of legal interests, see, eg, Board of Grievances Case No 19/28 of the year 1399 Hegira (1979, exact date not mentioned); Case 2114/Q of 21 Shaban 1436 [9 June 2015], both rejecting the enforcement of legal interests ordered by Bahraini courts, but allowed the partial enforcement of the main award. See also Case No 2497/1/Q of 10 Ramadan 1427 Hegira [3 October 2006] accepting the enforcement of an Egyptian judgment after the judgment creditor gave up the claim to enforce the part awarding legal interests ordered by the foreign judgment. On the consistency of an award for lost profit and moral damages, see Board of Grievances Case No 1783/1/Q of 12 November 1996 (n 29). On the other hand, Saudi judges found that the foreign judgment invalidating the contract of sale of shares based on the foreign law regulating the transfer of the negotiable instruments was consistent with the principles of Sharia (Board of Grievances Case No 1645/1/Q (n 29)). 62 Board of Grievances Case No 3375/1/Q of 16 Muharram 1430 Hegira [13 January 2009].

190  Béligh Elbalti female judge did not violate Sharia principles on the ground that the issue of the possibility for women to serve as judges was disputed among the different schools of classical Islamic religiolegal jurisprudence (fiqh).63 Courts in other jurisdictions seem to show more caution in articulating the traditional Sharia prohibitions with diverging (sometimes conflicting) State legislation. For example, a court would explain that despite the importance of Sharia principles as a source of law, judges are compelled to refer to it only in the absence of applicable legislative rules.64 In some other cases, where the content of the legislative provisions themselves that triggered the intervention of public policy reflects the traditional positions under Sharia principles, the courts do not seem to be compelled to justify their decisions by reference to Sharia.65

ii.  Requirements that are Explicitly Stated in the Legislation of the Majority but Not All MENA Arab Jurisdictions a. Service This condition is expressly stated in the enforcement legislation of all MENA Arab jurisdictions except for Algeria, Morocco, Tunisia and Palestine.66 Unlike article 7(1)(a),67 MENA Arab codifications do not provide details about how this requirement should be satisfied. However, service is usually regarded as a matter of procedure that should be governed by the lex fori.68 Accordingly, service would be regarded as properly effectuated when it is served in accordance with the law of the rendering State.69 It is however argued that service effectuated under the law of the rendering State cannot be accepted when it conflicts with the public policy considerations

63 Board of Grievances Case No 343/1/Q of 27 Jumada Al-Awal 1429 Hegira [1 July 2008]. 64 See, eg, UAE (Federal Supreme Court Case No 326 (n 18) rejecting the argument of the judgment debtor who argued that interests ordered by a Lebanese judgment violated Islamic Sharia); Kuwait (Supreme Court Case No 958 and No 1497 of 26 April 2011 rejecting the argument of the judgment debtor that the enforcement of the foreign judgment ordering the payment of interests in commercial transaction was against Sharia principles despite the fact that the judgment debtor had submitted a legal opinion [fatwa] from the State religious authority supporting its argument). See also, in a different context, Bahrain (Supreme Court Case No 205 of 7 May 2012 considering that interests in commercial transactions were permitted by the Kingdom’s legislation and were not contrary to public policy). But compare with UAE (Dubai Supreme Court Case No 131 (n 56) refusing the enforcement of an English judgment awarding financial remedies in the course of a divorce proceeding between two Russian nationals on the ground of violation of Sharia and public policy). 65 See, eg, Kuwait (Supreme Court Case No 835 of 5 December 2008 refusing to enforce a Jordanian judgment ordering the payment of interest on the ground that interests in civil transactions, whether conventional or legal, were not permitted); Algeria (Supreme Court Ruling No 32463 of 23 June 1984 rejecting the enforcement of a French judgment awarding interests prohibited by Algerian law in a loan agreement between individuals); Jordan (Supreme Court Ruling No 40 of 19 April 2006 considering that the payment of interest ordered by the foreign court whose total amount exceeded three times the amount of compensation ordered for moral damages as inconsistant with public policy). 66 However, this does not mean that in practice the service requirement is unknown in those jurisdictions as it is usually addressed within the framework of procedural public policy, notably the respect of the right of defence. See, eg, Tunisia (Supreme Court Ruling No 1230 of 29 September 2005); Algeria (Supreme Court Ruling No 483370 of 17 June 2009). 67 See Garcimartín and Saumier (n 32) para 247 ff; Marcos Dotta Salgueiro, ch 4 in this volume. 68 The principle that matters of procedure should be governed by the lex fori is explicitly stated in the following codifications including Algeria (art 21 bis Civil Code); Egypt (art 22 Civil Code); Iraq (art 28 Civil Code); Jordan (art 23 Civil Code); Libya (art 22 Civil Code); Oman (art 23 Code of Civil Transactions); Qatar (art 32 Civil Code); Syria (art 23 Civil Code); Yemen (art 32 Civil Code); UAE (art 21 Code of Civil Transactions). 69 See, eg, Egypt (Supreme Court Case No 232 of 2 July 1964 accepting the validity of summons via publication in a local newspaper, Case No 1136 (n 48)); UAE (Federal Supreme Court Case No 153 of 7 March 2003 admitting the validity of service in accordance of the law of the rendering State); Tunisia (Supreme Court Ruling No 38477 of 28 January 2010 stating that modality of notice is a procedural matter that is governed by the law of the rendering State).

Perspectives from the Arab World  191 of the State addressed.70 This would be the case when the service does not effectively provide the defendant with an adequate opportunity to present its case.71 b.  Right of Defence This requirement is expressly stated in the enforcement legislation of all MENA Arab jurisdictions except for Algeria, Palestine, Iraq, Jordan and Morocco.72 The requirement can be understood to cover most (if not all) issues relating to procedural public policy, including the guarantee of a fair hearing, adversarial principle and fundamental tenets of due process.73 In this sense, it can be considered that the right of defence requirement echoes the ‘principle of procedural fairness’ included in Article 7(1)(c) of the Hague 2019 Judgments Convention.74 However, a court might consider some specific aspects of its procedural law as relating to public policy such as the maintenance of double degree of jurisdiction or the need for the judge to attempt conciliation first.75 c.  Conflicting Judgments This condition is expressly mentioned in the legislation of all Arab jurisdictions except for Iraq, Jordan and Morocco.76 In the overwhelming majority of MENA Arab jurisdictions, the law simply states that enforcement can be refused if the judgment contradicts or is inconsistent with a judgment rendered in the enforcing State.77 Like Article 7(1)(e) of the HCCH 2019 Judgments Convention,78 the MENA Arab codifications explicitly make from ‘inconsistency’ a necessary condition for the operation of this requirement.79 Also, like Article 7(1)(e), the Arab codifications

70 See, eg, J Sayed Ahmed, ‘Enforcement of Foreign Judgments in some Arab Countries – Legal Provisions and Court Precedents: Focus on Bahrain’ (1999) 14 Arab Law Quarterly 169, 174. In this sense, see Supreme Court of Lebanon, Ruling No 3 of 29 January 2002. 71 See, eg, Lebanon (Supreme Court Ruling No 196 of 7 December 2006 stating that notification is governed by the rules of the rendering State provided that the said rules do not deprive the defendant of its right of defence, Ruling No 24 of 13 February 2009 in which the defendant was not given sufficient time to respond to the claim); Kuwait (Supreme Court Case No 246 of 29 June 2003 in which the documents initiating the proceedings contained incorrect information); Jordan (Supreme Court Ruling No 825 of 31 December 2008 in which the notification was sent to an address different from that of the defendant). 72 The remark (n 66) applies here as well. See, eg, Jordan (Supreme Court Ruling No 2892 (n 41), No 184 of 24 April 2007 or No 1666 of 14 November 2007 considering the defendants’ right of defence was not guaranteed). 73 See, eg, Tunisia, Supreme Court Ruling No 1230 (n 66). The Supreme Court also considered as violating the parties right of defence a foreign judgment awarding more than what the parties claimed. See also Ruling No 5251 of 21 October 2006. 74 See Garcimartín and Saumier (n 32) para 261; Marcos Dotta Salgueiro, ch 4 in this volume. 75 As example of the former, see, eg, Tunisia (Court of First Instance Judgment No 45116 of 10 November 2003); as example of the latter, see, eg, Tunisia (Supreme Court Ruling No 1230 of 29 September 2005). 76 The issue can, however, be addressed as a matter of public policy. See, eg, in Kuwait, Supreme Court Case No 337 of 23 February 2009 considering that it would be against public policy to give effect to a foreign judgment where the issue was already decided by Kuwaiti courts. 77 Algeria (art 605(3) CCAP, but the provision specifies that the defence should be invoked by the defendant); Bahrain (art 16(4) ERCCP); Egypt (art 298(4) CCCP); Kuwait (art 199(d) CCCP); Libya (art 406(3) CCCP); Mauritania (art 304(4) CCCAP); Oman (art 352(d) CCCP); Palestine (art 37(3) EA); Qatar (art 380(4) CCCP); Sudan (288(c) CCP); Syria (art 310(c) CCP); UAE (art 222(2)(e) CCP); Yemen (art 494(6) CPE). 78 Garcimartín and Saumier (n 32) para 271; Marcos Dotta Salgueiro, ch 4 in this volume. 79 Tunisia is an exception as art 11(2) CPIL does not require that the local and the foreign judgment be inconsistent with each other. cf S Ben Achour, ‘les conflits de procédures et de décisions en droit international privé tunisien’ (2013) 65 Revue international de droit comparé 287, 316.

192  Béligh Elbalti do not specify whether the judgment needs to be based on the same cause of action,80 or whether the inconsistent local judgment should be final or no longer subject to appeal.81 On the other hand, unlike Article 7(1)(e), the formulation used in all MENA Arab codifications suggests that the local judgments should have been previously rendered by the forum’s courts,82 although courts have taken divergent positions on this issue.83 Finally, except for Tunisia and Lebanon,84 it is not clear whether a foreign judgment must be rendered in a dispute between the same parties.85 Unlike Articles 7(1)(f) and 7(2) of the Convention, almost all MENA Arab codifications have failed to provide solutions to the question of conflicting foreign judgments and to the question of lis pendes where the proceeding before the courts of the State addressed are still pending when the enforcement of the foreign judgment is sought therein.86 Only Lebanese law includes provisions specifically dealing with these situations.87 However, regarding conflicting foreign judgments, the Lebanese solutions are considerably different from Article 7(1)(f). Where the latter gives precedence to the foreign judgment rendered first provided that the conditions necessary for its recognition in the requested State are met, article 1014(a) of the Lebanese CCP gives priority to the judgment that was rendered based on rules compatible with the Lebanese rules on international jurisdiction.88 Concerning lis pendens, the Lebanese solution under article 1016(b) CCP is simpler in the sense that it only requires that the same dispute be pending before Lebanese courts between the same parties, provided the proceeding before Lebanese courts were initiated first. However, unlike Article 7(2) which simply allows that the recognition and enforcement of the foreign judgment may be postponed or refused based on this ground, under article 1016(b) CCP, Lebanese courts do not have such discretion since they are required in this situation to reject the enforcement of the foreign judgment. 80 However, the corresponding provisions in Tunisia, Lebanon and Saudi Arabia specify that the disputed foreign judgment should have been rendered in the same dispute (Tunisia art 11(2) CPIL, Lebanon art 1016(a) CCP); on the same cause (Tunisia art 11(2) CPIL); or on the same subject matter (Saudi Arabia art 11(4) EA). See, eg, Saudi Arabia (Board of Grievances Case No 983/3/Q of 26 Dhu Al-Qadah 1429 Hegira [24 November 2008] rejecting the enforcement of a foreign judgment on the ground that it contradicted with a prior Saudi judgment rendered between the same parties on the same subject matter). See, however, Bahrain (Supreme Court Ruling No 939 (n 33) considering that the foreign judgment ordering the judgment debtor to return stolen property was not inconsistent with a prior criminal judgment of a Bahraini court declaring the defendant innocent since the property in question was found with defendant). 81 The former formulation is used in Lebanon (art 1016(a) CCP), the latter is used in Tunisia (art 11(2) CPIL). This means that it is not sufficient that a local inconsistent judgment be rendered, but this judgment should be final and conclusive. See Ben Achour, ‘les conflits de procédures et de décisions en droit international privé tunisien’ (n 79 314–15. In other words, a non-final inconsistent local judgment, ie, still subject to ordinary appeal, would not bar the enforcement of a final foreign judgment even if that judgment is enforceable (has the formule exécutoire). See Gara (n 37) 124. 82 See Garcimartín and Saumier (n 32) para 271 stating that: ‘[t]he judgment does not need to be given prior to the competing judgment’ (emphasis added). The situation seems to be different in the MENA region. See, eg, Kuwait (Supreme Court Ruling No 181 of 10 December 2007 refusing the enforcement of a foreign judgment on the ground that a domestic judgment had already been rendered on the same matter); Tunisia (Tunis Court of First Instance Judgment No 22591 (n 29) stating that where a foreign judgment conflicts with a local judgment, priority should be given to the local judgment since it was rendered first). 83 See, eg, Kuwait (Supreme Court Ruling No 34 of 3 December 2006 accepting the enforcement of a competing foreign judgment on the ground that the said judgment was rendered before a competing Kuwaiti judgment). Contra UAE (Federal Supreme Court Case No 10 of 5 May 2002 considering that a foreign judgment could not have priority over an Emirati judgment that became final and conclusive after the competing foreign judgment became final). 84 The corresponding provisions in Lebanon (art 1016(a) CCP) and Tunisia (art 11(2) CPIL) specify that the foreign judgment should not be inconsistent with a local judgment rendered between the same parties. 85 See Tunis Court of Appeal No 22715 of 22 February 2006, considering the parties in the dispute were the same although the defendant in the foreign proceedings was different from the party against whom the enforcement was sought. 86 See Dubai Supreme Court Case No 16 (n 19) in which a conflict between a Turkish judgment and a Saudi judgment was at issue. In this case, although the same parties were involved, the Court solved the conflict by considering that the Saudi judgment rendered second was not between the same parties. 87 Arts 1014(a) and 1016(b). See Najm (n 10) 473–74. 88 See the critical assessment of Najm (n 10) 474.

Perspectives from the Arab World  193 Article 7(2) is potentially challenging in the MENA context. This point will be addressed below (section IV.I-C). d. Reciprocity Morocco,89

Except for Algeria and reciprocity is a largely shared requirement in the region. The way this requirement is formulated, however, differs. Most MENA Arab legislation states that foreign judgments can be enforced ‘under the same conditions stipulated in the law of the rendering State’ to enforce judgments of the forum (principle of equal treatment).90 Other MENA Arab jurisdictions require that their judgments be allowed enforcement by the courts of the rendering State.91 Others base the enforcement of foreign judgments on or subject it to the respect of the reciprocity rule.92 Irrespective of the manner in which it is formulated, reciprocity, where adopted, operates indistinctively whether the foreign judgment was rendered in favour of a national or not.93 A notable exception can be seen in Kuwait where, by way of a reform effectuated in 2007, reciprocity is not applied when the judgment is rendered in favour of Kuwaiti nationals (natural or legal persons) and the enforcement of the said judgment is sought against the assets of another Kuwaiti national (natural or legal person).94 The way reciprocity is interpreted and applied varies between the different MENA Arab jurisdictions, although it is generally understood that its establishment does not depend on the existence of a formal treaty.95 Reciprocity can be applied restrictively by requiring for its establishment the proof that the forum’s judgments have been enforced in the rendering State,96 or concrete evidence that the law of the rendering State allows the enforcement of the forum’s judgments.97 In this case, it might be necessary to show that judgments of the State addressed 89 However, in Algeria, reciprocity is required with respect to the enforcement of foreign judgments on oil pollution damages (Art 145 Maritime Code). In Morocco, Article 19 of the Dahir (Royal Decree) of 12 August 1913 on the civil Status of French Nationals and Foreigners in Morocco (still partially in force) refers to reciprocity. However, the majority view of Moroccan scholars considers that the said Article 19 was tacitly abrogated by the new enforcement rules included in the Moroccan CCP. Also, Moroccan courts do not cite Article 19 in their judgments. But cf Ruling No 50 of 28 January 2014. In this case, the Moroccan Supreme Court considered that the absence of a convention between the United Kingdom and Morocco did not mean UK courts would refuse to enforce Moroccan judgments as to make it necessary the examination of the notion of reciprocity. By ruling as it did, the Court suggests that reciprocity could have been examined and the foreign judgment refused enforcement had it appeared from the case that Moroccan judgments were not enforced in the rendering State in the absence of a treaty between the two countries. 90 Bahrain (art 16 LECCM); Egypt (art 296 CCCP); Kuwait (art 199 CCCP); Libya (art 405 CCCP); Mauritania (art 303 in fine CCAP); Oman (art 352(a) CCCP); Qatar (art 379 CCCP); Syria (art 308 CCP); Yemen (art 494(3) CPE); Palestine (art 36 EA); UAE (art 222 CCP). For an interesting application of reciprocity as equal treatment, see Supreme Court of Kuwait, Case No 642 and Case No 660 (n 30). 91 Jordan (art 7(2) EFJA); Lebanon (art 1014(d) CCP); Oman (art 352(e) CCCP); Sudan (art 288(g) CCP). 92 Saudi Arabia (art 11 EA) as an example of the former; Tunisia (art 11(5) CPIL) as an example of the latter. 93 See, eg, Tunis Court of Appeal Ruling No 37565 of 31 January 2013. For critical comments, see B Elbalti, ‘La réciprocité en matière de réception des décisions étrangères en droit international privé tunisien’ available at: papers.ssrn. com/sol3/papers.cfm?abstract_id=3134368. 94 New art 199 in fine. On the background of this reform and critical assessment, see Alghanim (n 5) 503–07. 95 See, eg, UAE (Federal Supreme Court Case No 247 of 6 November 2012); Saudi Arabia (Board of Grievances Case No 343/1/Q (n 63)); Jordan (Supreme Court Ruling No 1921 (n 28)); Egypt (Supreme Court Case No 3940 of 15 June 2020); Tunisia (Supreme Court Ruling No 6608 of 13 March 2014). Iraq, however, is a notable exception. According to Art 11 of the Iraqi EFCJA, ‘[t]his law applies to foreign judgments rendered by foreign courts specifically named by Ordinances issued from time to time’ (emphasis added). See the Federal Supreme Court Ruling No 364 of 3 March 1987. For more details, see Elbalti, ‘The Recognition of Foreign Judgments as a Tool of Economic Integration’ (n 31) 225. 96 eg, Saudi Arabia (Board of Grievances Case No 343/1/Q (n 63) accepting the enforcement of an American judgment). See also, the Tunis Court of Appeal Ruling No 37565 (n 93). However, this decision is not representative of the Tunisian practice on reciprocity. 97 eg, Jordan Supreme Court Ruling No 2700 of 21 September 2020; Ruling No 6596 of 9 February 2020. On these cases, see: conflictoflaws.net/2020/no-reciprocity-for-swiss-and-german-judgments-in-jordan. But compare the same Supreme Court Ruling No 1921 (n 28) (accepting reciprocity with the United Kingdom).

194  Béligh Elbalti can be enforced in the rendering State based on requirements that are similar or more lenient compared with the requirements provided by the forum’s law for the enforcement of foreign judgments.98 Reciprocity can also be interpreted and applied in a relaxed manner.99 This is the case for example when the court addressed considers that reciprocity is fulfilled when its judgments are generally enforceable in the rendering State,100 interprets the reciprocity requirement to mean de jure reciprocity,101 or establishes a presumption in favour of reciprocity by placing the burden to show the absence of reciprocity on the party resisting enforcement.102

iii.  Requirements that are Explicitly Stated in the Legislation of Only a Few MENA Arab Jurisdictions a. Fraud Unlike the overwhelming majority of MENA Arab jurisdictions, the HCCH 2019 Judgments Convention includes fraud among the grounds for non-recognition.103 Fraud is one of the grounds for refusal in Iraq, Jordan, Oman and Sudan.104 In Lebanon, the existence of fraud justifies the review on the merits of the foreign judgment.105 In other jurisdictions, although not explicitly listed among admitted non-enforcement requirements, fraud may justify the refusal to enforce foreign judgments.106 b.  Violation of the Laws in Force of the State Addressed In some MENA Arab legislation, foreign judgments can be refused enforcement if it involves a claim that violates the law in force in the State addressed (Oman and Sudan) or when the enforcement is inconsistent with the law of the State and prejudicial to the supreme national interest (Palestine).107 A similar reference to the ‘infringement of security and sovereignty’ of the rendering State can also be found in Article 7(1)(c) of the HCCH 2019 Judgments Convention.108 It is not clear how this requirement would operate in the jurisdictions where it is admitted. In one recent decision, the Palestinian Supreme Court referred to money laundering, and transactions relating to prostitution and drugs as examples of subject matters that would violate ‘public policy and good morals, national interest and Palestinian law’.109

98 eg, UAE (Supreme Court of Dubai Case No 269 of 26 February 2006 denying reciprocity with the United Kingdom). 99 cf B Elbalti, ‘Reciprocity and the Recognition and Enforcement of Foreign Judgments – A lot of Bark but not much Bite’ (2017) 13 Journal of Private International Law 184 ff, esp 186, fn 9 with respect to MENA Arab jurisdictions. 100 See, eg, Lebanon Supreme Court Ruling No 79 of 31 May 2007. 101 See, eg, Egypt Supreme Court Case No 3940 (n 95); Kuwait Supreme Court Case No 813 of 1 November 2004. 102 See, eg, Tunisia Supreme Court Ruling No 6608 (n 95). 103 Art 7(1)(b). See Garcimartín and Saumier (n 32) para 407 ff. 104 Iraq (art 8 EFCJA); Jordan (art 7(4) EFJA); Oman (art 352(1) CCCP); Sudan (art 288(5) CCP). 105 Art 1015 CCP. See Lebanon Supreme Court Ruling No 127 of 19 October 2004. 106 See Tunis Court of Appeal Ruling No 22715 (n 85) (admitting fraud as a general principle of private international law, although the use of fraud was justified by the bilateral convention applicable to the case). See also, Egypt Supreme Court Decision No 4 of 12 January 1956 citing fraud as a ground for refusal to grant effect to foreign judgments. 107 Oman (art 352(4) CCCP); Sudan (art 288(6) CCP); and Palestine (art 36(1) EA). 108 See Garcimartín and Saumier (n 32) para 264; Marcos Dotta Salgueiro, ch 4 in this volume. cf the contribution of Adeline Chong, ch 12 in this volume for similar provisions in some ASEAN jurisdictions. 109 Ruling No 463 of 16 February 2022. In this case, the Supreme Court quashed the Court of Appeal decision which partially enforced a Jordanian judgment excluding the award of legal interests on the ground that such an award lacked legal basis in Palestinian law.

Perspectives from the Arab World  195 On the other hand, generally speaking, judges are not required to control whether the foreign court has applied the law which is applicable according to the enforcing court’s conflicts rules. This is consistent with the HCCH 2019 Judgments Convention which does not allow the court addressed to refuse the recognition and enforcement on this ground.110 Some courts, however, have considered the issue under the public policy defence.111

III.  Complexity of the Existing Enforcement Schemes All MENA Arab jurisdictions have established their network of multilateral (A) and bilateral conventions (B) dealing with the recognition and enforcement of foreign judgments. However, as will be shown below, the overlapping recognition schemes in place in the region combined with the MENA Arab courts’ attitude towards the application of international conventions often complicate the enforcement landscape (C).

A.  Multilateral Conventions i.  General Overview If one puts aside the exceptional ratification by Kuwait of the HCCH 1971 Judgments Convention and its Protocol, most of the MENA Arab jurisdictions have always preferred regional integration through the conclusion of a number of regional conventions. As Table 2 below shows, numerous regional conventions have been concluded, although some of those conventions have remained only ink on paper.112 The most relevant conventions are the following (in chronological order): (i) the Convention of the Arab League on the Enforcement of Judgments and Arbitral Awards of 14 September 1952 (hereafter, Arab Judgments Convention);113 (ii) the Riyadh Arab Convention on Judicial Cooperation of 6 April 1983 (hereafter Riyadh Convention);114 and (iii) the Convention on the Enforcement of Judgments, Letter Rogatory and Judicial Notice between the Member States of Arab Gulf Cooperation Council of 4–6 December 1995 (hereafter, GCC Convention).115 110 See Garcimartín and Saumier (n 32) para 119; Marcos Dotta Salgueiro, ch 4 in this volume. 111 However, this seems to be limited to foreign judgments rendered in family matters. See, eg, Iraq (Supreme Court Ruling No 11/H.C.M/2018 of 20 February 2018); Egypt (Supreme Court Case No 621 of 25 May 1993). 112 Two conventions can be mentioned here. The first has never came to fruition due to political upheavals. This is the case of the Arab Cooperation Council Convention on Legal and Judicial Co-operation between Egypt, Iraq, Yemen and Jordan of 16 June 1989 (hereafter ACC Convention). The second has not entered into force due to lack of ratification by all of its Member States. This is the case of the Convention on Legal and Judicial Cooperation between the States of the Arab Maghreb Union signed at Ras Lanouf, Libya on 9 and 10 March 1991, concluded between Mauritania, Morocco, Algeria, Tunisia and Libya (hereafter Ras Lanouf Convention). The latter, however, can potentially become effective as its entry into force depends on its ratification by Morocco. This is very unlikely to happen due to the political conflict opposing Morocco and Algeria. 113 Unofficial English translation is available at: www.aia-adr.com/blank-c10t5. For detailed analysis on this instrument from a comparative perspective, see E Abdallah, ‘La convention de la Ligue Arabe sur l’exécution des jugements – Etude comparative du droit conventionnel comparé avec le droit interne’ (1973) 138 Collected Courses of the Hague Academy of International Law 503. See also, El Chazli (n 11) 394–99. 114 Unofficial English translation is available at: www.refworld.org/docid/3ae6b38d8.html. For a general overview, see K Bälz and A Shahoud Almousa, ‘The Recognition and Enforcement of Foreign Judgments and Arbitral Awards under the Riyadh Convention (1983) – Thirty Years of Arab Judicial Cooperation’ (2014) 4 International Journal of Procedural Law 273. 115 Unofficial English translation is available at: www.aia-adr.com/blank-cu0h. For a comparative study on the provisions of the three Conventions see, HMS Al Mulla, ‘Conventions of Enforcement of Foreign Judgments in Arab States’ (1999) 14 Arab Law Quarterly 33.

196  Béligh Elbalti Table 2  List of Intra-Arab Multilateral Conventions Dealing with or Including Provisions on (the Recognition and) Enforcement of Foreign Judgments. Dates indicate the ratification of the Convention 1952 Arab Judgment Convention

1983 Riyad Convention

ALG

20.5.2001

BAH

23.1.2000

DJI

29.1.2014

1985 ACC Convention (Ineffective)

1991 Ras Lanouf Convention (Not yet in force)

1995 GCC Convention

27.6.1994 12.3.1996

EGY

25.7.1954

8.9.2014

Contracting State

IRQ

3.10.1957

16.3.1984

Contracting State

JOR

28.7.1954

17.1.1986

Contracting State

KUW

20.5.1962

Signed only

LEB

Signed only

Signed only

LIB

19.5.1957

6.1.1988

6.5.1993

MAU

17.6.1985

8.2.1993

MOR

30.3.1987

Signed only

OMA

28.7.1999

PAL

28.11.1983

QAT

Signed only

24.4.1996

11.5.2000

12.9.1996

SA

5.4.1954

SOM

30.9.1985

SUD

26.11.1984

SYR

29.9.1956

TUN UAE YEM

1.8.1998

6.2.1996

30.9.1985 29.10.1985

12.12.1972

15.4.1999

Signed only

11.6.1984116

29.11.1991 17.6.1996 Contracting State

Except for minor differences, the GCC Convention’s rules on judgments enforcement are almost identical to those of the Riyadh Convention. In addition, the Riyadh Convention has largely replaced the Arab Judgments Convention.117 Therefore, only the Riyadh Convention will be briefly outlined below.

116 At the time of ratification, Yemen was divided into two independent countries: the People’s Democratic Republic of Yemen and the Yemen Arab Republic, each of whom had ratified the Convention separately. Both countries were later reunified in 1990 to become the actual Republic of Yemen. 117 Except for Lebanon and Yemen, which have signed but not ratified this Convention, eight Arab States are Contracting States thereto. Art 72 of the Riyadh Convention states that the Convention shall replace, in respect of the States which

Perspectives from the Arab World  197

ii.  The Riyadh Convention Of the 22 LAS Member States, 18 have joined the Riyadh Convention.118 Unlike the Arab Judgments Convention, the Riyadh Convention deals with judicial assistance in a broad sense including, inter alia, service and letter rogatory in addition to the cross-border circulation of judgments. Moreover, unlike the Arab Judgments Convention and the GCC Convention, the Riyadh Convention deals with both ‘recognition’ and ‘enforcement’ of foreign judgments.119 The Convention defines ‘judgments’ to mean any decision – regardless of its nomenclature – rendered following contentious or non-contentious judicial proceedings before the courts of the rendering State. Under the Riyadh Convention, recognition and enforcement are not limited to judgments rendered in civil and commercial matters, but also cover judgments rendered in personal status matters, and judgments rendered in administrative matters.120 In addition, in order to be eligible for recognition and enforcement, the foreign judgment should be final and conclusive (ḥa’iz li-quwwat al’amr al-maqdhī bihi), enforceable in the rendering State and rendered by a competent court provided that the courts of the State addressed or those of another contracting State do not claim exclusive jurisdiction over the dispute.121 Unlike the Arab Judgments Convention, the Riyadh Convention determines the standards based on which the indirect jurisdiction of the rendering court should be examined. This can be done either in accordance with the jurisdictional rules of the State addressed or following the specific indirect jurisdiction grounds laid down in the Convention. These include: (i) nationality in matters of status and capacity;122 (ii) location of the immovable in matters relating to in rem rights in immovable property;123 (iii) the defendant’s domicile or place of residence;124 (iv) location of branch or place of business provided that the action concerns the activity of that

have ratified it, the 1952 Arab Judgments Convention. The latter continues to be relevant for Kuwait as it is the only Arab Judgments Convention Contracting State that has not duly ratified the Riyadh Convention yet. 118 See Table 2 above. The non-Contracting States are Kuwait, Lebanon, Qatar and Comoros. Some authors, however, present Kuwait as a Contracting State of the Riyadh Convention. See, eg, Alghanim (n 5) 495. Interestingly, in some cases, courts in Kuwait and some other Arab countries have also referred to the Riyadh Convention as if it were applicable with respect to Kuwait. See, eg, Kuwait (Supreme Court Case No 312 of 1 December 2008 refusing to enforce a Jordanian judgment); Saudi Arabia (Board of Grievances Case No 913/5/Q of 27 Shawal 1431 Hegira [6 October 2010]); and Jordan (Supreme Court Ruling No 3583 of 27 March 2005) enforcing Kuwaiti judgments. However, the updated text of the Riyadh Convention (available at: www.leagueofarabstates.net/ar/legalnetwork/Pages/agreements_details.aspx?RID=67 in Arabic only) shows that Kuwait has only signed but not ratified the Convention, an information that the author could confirm in an email exchange with the LAS Legal Service Office (Reply of 22 January 2022, on file with the author). The same applies for Qatar as well. See Qatar Supreme Court Case No 137 1 January 2011 applying the Riyadh Convention despite its non-ratification by Qatar. 119 The Convention also covers the Pan-Arab circulation of arbitral awards as well as judicial settlements and authentic instruments. Unlike the Brussels Ibis Regulation and the HCCH Conventions, the Riyadh Convention explicitly refers to the ‘recognition’ and ‘enforcement’ of judicial settlements (art 35) and authentic instruments (art 36). 120 However, certain matters, such as provisional and interim measures, judgments rendered in matters of bankruptcy, taxes and duties are explicitly excluded from scope of application of the Convention (art 25(c)). 121 Art 25(b). As to exclusive jurisdiction compare with Art 6 of the HCCH 2019 Judgments Convention. 122 Art 26. It should be indicated that art 26 refers to the nationality of the person at the time of initiating the proceeding before the competent court. This suggests that nationality concerns both the plaintiff and the defendant. 123 Art 27. Interestingly, unlike Art 6 of the HCCH 2019 Judgments Convention, the Riyadh Convention does not base a ground of exclusive jurisdiction on the location of the immovable. However, the same result can be achieved indirectly by the reference made to national law included in art 25(b) dealing with exclusive jurisdiction. 124 Art 28(a). cf Art 5(1)(a) HCCH 2019 Judgments Convention.

198  Béligh Elbalti branch or place of business;125 (v) place of performance of a contractual obligation;126 (vi) place where the act giving rise to liability took place in matters of non-contractual liability;127 (vii) express submission of the defendant to the jurisdiction of the rendering court either by way of designation of an elected domicile or through a choice of court agreement;128 (viii) appearance of the defendant without raising jurisdictional defences;129 and (ix) counterclaims where the court has jurisdiction over the principal claim.130 More importantly, and unlike the Arab Judgments Convention and the GCC Convention, the Riyadh Convention makes it clear that the court addressed shall be bound by the findings of facts on which the court of origin based its jurisdiction unless the judgment was given by default.131 The Riyadh Convention lists the grounds based on which a foreign judgment can be refused recognition and enforcement. These include: (i) violation of Islamic Sharia, the Constitution or public order and good morals; (ii) lack of notice in case of a default judgment; (iii); non-respect of the law of the court addressed concerning the legal representation of persons lacking or having limited capacity; (iv) inconsistency with a prior local final judgment between the same parties on the same cause of action or a judgment of a third Contracting State which has already been recognised; and (v) pendency of the dispute between the same parties on the same cause of action provided that those proceedings were the first to be instituted.132 Finally, the Riyadh Convention prohibits the review on the merits of the case,133 but unlike the Arab Judgments Convention, explicitly refers to the possibility of partial recognition or enforcement.134 As the foregoing shows, the Riyadh Convention is quite similar to the HCCH 2019 Judgments Convention, although, in some aspects, the Riyadh Convention seems to be less rigorous. This is particularly true with respect to the scope of application and excluded matters, the flexibility as to the standard based on which indirect jurisdiction should be examined. On some other points, the HCCH 2019 Judgments Convention seems to be more detailed, notably with respect to some rules pertaining to some ground of indirect jurisdiction or some ground for refusal of recognition and enforcement. It also provides some solutions that have no equivalent in the Riyadh Convention.135

125 Art 28(b). cf Art 5(1)(d) HCCH 2019 Judgments Convention. 126 Art 28(c). The place of performance concerns a contractual obligation effectively performed in the territory of a Contracting State or should have been performed therein on the basis or an express or tacit agreement of the parties (agreement as to the place of performance and not a choice of court agreement). cf Art 5(1)(g) HCCH 2019 Judgments Convention. 127 Art 28(d). cf Art 5(1)(j) HCCH 2019 Judgments Convention. However, the material scope of Art 5(1)(j) is substantially more limited compared with that of art 28(d) of the Riyadh Convention. 128 Art 28(e). cf Arts 5(1)(e), (m) and 5(2) HCCH 2019 Judgments Convention. 129 Art 28(f). cf Art 5(1)(f) HCCH 2019 Judgments Convention. 130 Art 28(g). cf Art 5(1)(l) HCCH 2019 Judgments Convention. 131 Art 29. Comparing with the HCCH 2005 Choice of Court Convention which includes similar provision (Art 8(2)), Garcimartín and Saumier (n 32) para 121 explain that: ‘such provision makes sense when the instrument establishes harmonised rules on direct jurisdiction’. The Riyadh Convention shows that such an argument is not fully convincing. Also, the HCCH 1971 Judgments Convention (Art 9), as well as numerous bilateral conventions dealing only with foreign judgments also included a similar provision. See, eg, Tunisia–Austria Convention of 1977 (art 12(2)), France–Egypt Convention of 1982 (art 26 in fine). 132 Art 30. cf Art 7 HCCH 2019 Judgments Convention. 133 Art 32(1). cf Art 4(2) HCCH 2019 Judgments Convention. 134 Art 32 in fine. cf Art 9 HCCH 2019 Judgments Convention. 135 See, eg, art 5(2) and (3), art (6), art 8, art 10.

Perspectives from the Arab World  199

B.  Bilateral Conventions As Table 3 below shows, all MENA Arab jurisdictions have established their network of bilateral conventions. Table 3  List of Bilateral Conventions on judicial assistance. Numbers between parentheses refer to the year of the conclusion of the Convention136 Countries

Number

Contracting states

ALG

35

France (1962), Morocco (1963), Tunisia (1963), Egypt (1964), Mauritania (1969), Belgium (1970), Bulgaria (1975), Hungary (1976), Poland (1976), Romania (1979), Syria (1981), Czechoslovakia (and its successors, 1981), URSS (and its successors, 1982), Yugoslavia (and its successors, 1982), Germany (1983), Mali (1983), UAE (1982), Niger (1984), Turkey (1989), Cuba (1990), Libya (1994), Bahrain (1997), Jordan (2001), Yemen (2002), Sudan (2003), Italy (2003), Spain (2005), UK (2006), Portugal (2007), Iran (2010), China (2010), Vietnam (2010), Kuwait (2010), Bosnia and Herzegovina (2011), Chad (2016)

BAH

4

Egypt (1989), Morocco (1997, Syria (2001), India (2004) Algeria (1964), Iraq (1964), Germany (1969), Tunisia (1976), Romania (1976), Italy (1977), France (1982), Turkey (1988), Bahrain (1989), Yemen (1989), Jordan (1987), Morocco (1989), Cyprus (1992), Libya (1992), Albania (1994), China (1994), Hungary (1996), Lebanon (1997), Russia (1997), Syria (1998), UAE (2000), Oman (2002), Kuwait (2017 replacing the 1977 Convention)

EGP

23

IRQ

9

Egypt (1964), Germany (1970), URSS (and its successors, 1973), Hungary (1977), Yugoslavia (and its successors, 1986), Afghanistan (1986), Poland (1988), Turkey (1989), Iran (2011)

JOR

10

Syria (1953), Lebanon (1954), Tunisia (1965), Turkey (1972), Egypt (1987), UAE (1999), Qatar (1997), Algeria (2001), Yemen (2001), Kuwait (2005)

14

Lebanon (1963), Tunisia (1977), Bulgaria (1988), Morocco (1996), Syria (1999), Italy (2002), Iran (2004), India (2005), Jordan (2005), China (2007), Yemen (2008), Algeria (2010), Albania (2011), Egypt (2017 replacing the 1977 convention)

LEB

8

Syria (1951), Jordan (1954), Kuwait (1963), Tunisia (1964), Italy (1970), Greece (1975), Egypt (1997), Bulgaria (2001)

LIB

8

Tunisia (1961), Morocco (1962), Sudan (1991), Egypt (1992), Algeria (1994), UK (2008), Ukraine (2008), Syria (2010)

MAU

4

France (1961), Tunisia (1965), Algeria (1969), Morocco (1972)

KUW

MOR

26

France (1957 as subsequently modified), Libya (1962), Algeria (1963), Tunisia (1964), Senegal (1967), Italy (1971), Romania (1972), Poland (1979), Belgium (1981), Mauritania (1972), Germany (1985), Turkey (1989), Egypt (1989), Syria (1995), Kuwait (1996), China (1996), Spain (1997), Bahrain (1997), UAE (2006 replacing the 1978 Convention), Yemen (2006), Saudi Arabia (2006), Sudan (2007), Oman (2010), Azerbaijan (2011), Brazil (2013), Bosnia and Herzegovina (2014) (continued)

136 It should be indicated that some listed instruments might not contain rules on recognition and enforcement of foreign judgments as this could not be confirmed by the author. In addition, the list might not be complete for some countries. Intra-Arab bilateral conventions are underlined. All Conventions in bold were concluded after the ratification of the Riyadh Convention.

200  Béligh Elbalti Table 3  (Continued) Countries

Number

Contracting states

OMA

2

Egypt (2002), Morocco (2010)

QAT

2

Tunisia (1997), Jordan (1997)

SA

5

Kazakhstan (2004), Syria (2005), Morocco (2006), Yemen (2007), Sudan (2009)

25

Lebanon (1951), Jordan (1953), Germany (1970), Bulgaria (1976), Romania (1978), Tunisia (1980), Algeria (1981), Greece (1981), Czechoslovakia (and its successors, 1984), URSS (and its successors, 1984), Cyprus (1985), Poland (1985), Hungary (1986), Morocco (1995), Egypt (1998), Kuwait (1999), Sudan (1999), UAE (1999 replacing the 1979 Convention), Iran (1999), Bahrain (2001), Saudi Arabia (2005), Yemen (2005), North Korea (2006), Ukraine (2008), Libya (2010)

31

Libya (1961), Algeria (1963), Lebanon (1964), Morocco (1964), Senegal (1964), Jordan (1965), Mauritania (1965), Mali (1965), Germany (1966), Italy (1967), Romania (1971), France (1972), Cote d’Ivoire (1975), Bulgaria (1975), UAE (1975), Egypt (1976), Kuwait (1977), Austria (1977), Czechoslovakia (and its successors, 1979), Syria (1980), Turkey (1982), Hungary (1982), URSS (and its successors, 1984), Poland (1985), Belgium (1989), Greece (1993), Qatar (1997), Yemen (1998), China (1999), Spain (2001), Argentina (2006)

UAE

21

Tunisia (1975), Somalia (1981); Algeria (1982), France (1991), India (1999); Jordan (1999), Syria (1999 replacing the 1979 Convention), Egypt (2000), Armenia (2002), China (2004), Pakistan (2004), Sudan (2004), Morocco (2006 replacing the 1978 Convention), Azerbaijan (2006), Tajikistan (2007), Afghanistan (2008), Iran (2009), Kazakhstan (2009), Ukraine (2012), Kyrgyzstan (2014), Nigeria (2016)

YEM

10

URSS (and its successors, 1985), Tunisia (1998), Jordan (2001), Algeria (2002), Syria (2005), Sudan (2005), North Korea (2005), Morocco (2006), Saudi Arabia (2007), Kuwait (2008)

SYR

TUN

Generally speaking, those conventions are largely similar to each other although some differences can be detected. These include, inter alia, the assessment of the jurisdiction of the rendering court,137 or the control of the law applied by the rendering court.138

C.  Problems with International Conventions If one looks at the intra-Arab relationships, the fact that many of the bilateral conventions have been concluded despite the existence of the regional conventions can be surprising. Indeed, one would wonder why MENA Arab jurisdictions have felt the need to conclude such bilateral conventions despite the fact that they are already bound by so many regional conventions knowing that those bilateral conventions do not necessarily provide for more lenient enforcement

137 For the various systems that can be found in the network of the bilateral conventions concluded by Tunisia, see Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (n 13) 138 ff. 138 See, eg, the 1964 Senegal–Tunisia Convention (art 31(2)); the 1991 UAE–France Convention (art 13(1)(b)).

Perspectives from the Arab World  201 regimes.139 This shows in fact that there is no logic in negotiating international conventions and that the conclusion of conventions seems to serve purely diplomatic purposes rather than solve legal problems to the detriment of legal certainty. The absence of logic in concluding international conventions necessarily leads to serious problems of conflict of conventions, which is sometimes very difficult to solve.140 Furthermore, the feeling of surprise gets more intense when one notices that MENA Arab courts have often shown little eagerness to apply those conventions.141 This is more so knowing that the superiority of conventions is not only a constitutional principle142 but also admitted in both domestic legislation and case law.143 Nonetheless, the courts sometimes disregard the application of the concluded conventions, using technical pretexts.144 In other cases, although the convention is applied, the courts do so by reference to domestic legislation as if applying the rules laid down in the conventions alone is not sufficient. Finally, sometimes, even when the court applies the rules of a convention, it does so in a questionable manner. This can be the case when the courts apply the rules of indirect jurisdiction laid down in the applicable bilateral convention to justify their taking of international (direct) jurisdiction.145 Also, the courts may apply the rules of the convention without taking into account its spirit by distorting its meaning. This can be the case when the public policy defence is interpreted to include the control of the law applied by the rendering court,146 or by interpreting the rules of indirect jurisdiction laid down in the convention as conferring mandatory jurisdiction to the courts of the State addressed.147

IV.  Interrelation with the HCCH 2019 Judgments Convention The question of the interplay between MENA Arab enforcement regimes with the HCCH 2019 Judgments Convention will be examined from the point of view of the ‘recognition’ problem

139 For a critical assessment, see Elbalti, ‘The Jurisdiction of Foreign Courts and the Enforcement of their Judgments in Tunisia’ (n 44) 205–07. 140 ibid. See, eg, Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (n 13) 39–43; Alghanim (n 5) 497–500. 141 This is a general tendency that can be easily noticed in the case law of almost all MENA Arab courts, though the courts in some jurisdictions give the impression that they are more serious in applying international conventions (eg, Saudi Arabia) than others (eg, Tunisia). 142 See, eg, the Preamble of the Moroccan Constitution of 2011; art 150 of the Algerian Constitution of 1996; art 74 of the Tunisian Constitution of 2022. 143 National codifications in the region explicitly state that conventions concluded by the State have always priority of application over domestic legislation. Algeria (art 608 CCAP); Bahrain (art 18 LECCM); Egypt (art 301 CCCP); Kuwait (art 203 CCCP); Libya (art 411 CCCP); Oman (art 355 CCCP); Qatar (art 383 CCCP); Saudi Arabia (art 11 EA); Syria (art 313 CCP); Yemen (art 497 CPE); UAE (art 225 CCP). See, eg, UAE (Federal Supreme Court Case No 247 (n 95)); Tunisia (Supreme Court Ruling No 55204 (n 52)). 144 eg, in Tunisia, conventions that are duly ratified but whose text has not been officially published in the Official Gazette risk remaining ‘ink on paper’. See B Elbalti, ‘La competence international en matière de divorce à travers le prisme de la jurisprudence’ (2015) 196/197 Infos Juridiques 8, available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=2714670. 145 See, eg, Tunisia (Supreme Court Ruling No 389 of 13 June 2013, Ruling No 6238 of 23 December 2004. But contra, Ruling No 37117 of 22 October 2009 stating that rules of indirect jurisdiction laid down in the bilateral convention with France could not be used as rules of direct jurisdiction). 146 See the Ruling of the Iraqi Supreme Court No 11/H.C.M/2018 (n 111) considering that the non-application of Iraqi law as designated by the Iraqi choice of law rules was a matter of public policy justifying the refusal to enforce a foreign judgment in application of the Riyadh Convention despite the fact such a control is not required by the Convention. 147 See, eg, UAE (Abu Dhabi Supreme Court Case No 71 (n 48) refusing to recognise a Saudi judgment though the foreign court had indirect jurisdiction under the Riyadh Convention. The Supreme Court considered the fact that the person against whom the judgment was rendered had a place of residence in Abu Dhabi exclusive jurisdiction on courts in Abu Dhabi.

202  Béligh Elbalti (A), the eligibility of foreign judgments (B), the grounds for refusal (C), and the interplay of the Convention with other sources, be they of national or international origin (D). Based on the above, the delicate question of the incentives to conclude the Convention will be addressed (E).

A.  The ‘Recognition’ Problem Unlike other international instruments,148 the HCCH 2019 Judgments Convention does not explicitly adopt the principle of ‘automatic recognition’. In application of Article 13 of the Convention, important procedural issues regarding the operation of the Convention are governed by the national law of the State addressed including the way recognition should be carried out. Therefore, it is the law of the State addressed that determines whether recognition operates ipso jure.149 This rule can be problematic in jurisdictions where ‘recognition’ is dependent on a prior exequatur declaration as is the case in MENA Arab jurisdictions. This is more so knowing that invoking the res judicata effect of the foreign judgment as a bar to new action on the merits would not be possible if the foreign judgment has not been declared enforceable beforehand.150 The same can be said with respect to the appropriate application of some other requirements (notably Articles 7(1)(f) and 7(2)). This however will be addressed in section (C) below.

B.  Judgments Eligible for Recognition and Enforcement With respect to eligibility, three preconditions need to be satisfied for a foreign judgment to be entitled to circulation under the Convention. First, the foreign judgment should fall within the scope of application of the Convention but subject to an important number of excluded matters that can even be extended by way of declaration.151 Since MENA Arab legislation and conventions provide for a much broader scope of application, the list of exclusions is likely to pose some difficulty when it comes to delimitation and categorisation.152 Second, in application of Article 4(3), foreign judgments should be effective (for the purpose of recognition) and enforceable (for the purpose of enforcement) in the State of origin to be entitled to international circulation under the Convention. Although the Convention does not require that the foreign judgment be final and conclusive,153 it allows that the recognition and enforcement be postponed and eventually refused when the foreign judgment is subject to appeal in the State of origin. In the MENA Arab context, it is difficult to see how MENA Arab courts

148 See, eg, Art 36(1) Brussels I Recast (stating that a ‘judgment … shall be recognised … without any special procedure being required’). See also Art 23(1) HCCH 1996 Child Protection Convention (stating that ‘The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States’ (emphasis added)). 149 Garcimartín and Saumier (n 32) 139, para 308. 150 Such an attitude would have similar effects to outright non-recognition. See, B Elbalti, ‘Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Foreign Judgments’ (2014) 16 Japanese Yearbook of Private International Law 264, 269. 151 Arts 1 (Scope), 2 (Exclusion from Scope) and 18 (Declarations with Specific Matters). For details, see Xandra Kramer, ch 1 in this volume. See, eg, the declaration made by the EU regarding judgments relating to non-residential leases (tenancies) of immovable property situated in the EU (available at: www.hcch.net/en/instruments/conventions/status-table/noti fications/?csid=1469&disp=resdn). 152 cf L Clover Alcolea, ‘The 2005 Hague Choice of Court and the 2019 Hague Judgments Conventions versus the New York Convention: Revivals, Alternatives or Something Else?’ (2019/20) 6 McGill Journal of Dispute Resolution 187, 198. 153 See Garcimartín and Saumier (n 32) 83, para 129.

Perspectives from the Arab World  203 would make good use of Article 4(4) and accept postponing recognition and enforcement. Since the requirement of finality is generally understood to be limited only to judgments not subject to appeal subject to ordinary review in the State where they are rendered, the recognition and enforcement of non-final judgments might not be allowed in MENA Arab jurisdictions.154 Third, the foreign judgment should have been rendered by a competent court according to the ‘jurisdictional filters’ adopted in Article 5 except where the jurisdiction is deemed exclusive.155 Despite its central role in the Convention, Article 5 has often been criticised for being unnecessarily complex.156 Such complexity can be particularly problematic in the context of MENA Arab jurisdictions. As mentioned above (section II.C.i.b), the control of the indirect jurisdiction of the rendering court in many MENA Arab jurisdictions is either made according to the law of the rendering State or is almost completely excluded as is the case in Tunisia. Therefore Article 5 risks rendering the enforcement of foreign judgments in those jurisdictions more difficult.157 The delicate question of the operation of Article 15 will be addressed below (D). In addition, the application of some jurisdictional filters can be challenging. The example of Article 5(1)(g) on the jurisdictional filter in contractual matters is particularly illustrative.158 This is because the choice of law system that it adopts for the determination of the place of performance is simply unknown to all MENA Arab jurisdictions.159 This makes the provision quite impracticable due to the complexity of the process it follows. For example, the detour by the choice of law rule to determine the place of performance would significantly undermine the predictability and the philosophy behind the solution of Article 5(1)(g). This is because the application of choice of law rules is itself problematic in the MENA Arab context. It should be kept in mind that in many Arab jurisdictions, foreign law – including the law chosen by the parties – is treated as a matter of fact that needs to be pleaded by the parties and whose content is ascertained to the satisfaction of the court addressed,160 otherwise, the foreign law will be disregarded in favour of the lex fori.161 In addition, in the absence of choice of law by the parties, the default rule consists in the overwhelming majority of Arab countries in the application of the law of the common domicile of the parties, if not, the lex loci contractus. The ‘purposeful and substantial connection’ test adopted in Article 5(1)(g), which is often applauded as the result of

154 See, eg, Dubai Supreme Court Case No 287 of 15 October 2003 refusing to request to stay the enforcement proceeding until the appeal pending before the foreign rendering court is decided. 155 Art 6. For details, see Pietro Franzina, ch 3 in this volume. 156 See, eg, RA Brand, ‘The Hague Judgments Convention in the United States: A “Game Changer” or A New Path to the Old Game?’ (2021) 82 University of Pittsburgh Law Review 847, 857. 157 See examples of wrong applications and interpretations of the jurisdictional rules laid down in the existing convention, above nn 144 and 146. 158 The Explanatory Report (n 32) minimises, at 98, para 180, the complexity of this provision by stating that this jurisdictional filter ‘may not be invoked frequently at the enforcement stage’ ‘because parties to international contracts often include choice of court agreements or arbitration clauses in their contracts’. However, it seems to the author that such a statement overlooks the complexity of MENA Arab jurisdictions where sometimes for trivial reasons the choice of the parties would not respected. See, eg, Tunisia Supreme Court Ruling No 30136 of 27 January 2010 refusing to take into account a choice of court agreement designating a foreign court of the country of the plaintiff invoked by the Tunisian defendant on the ground that the said defendant had no ‘interest’ in withdrawing the case from Tunisian courts. 159 For a detailed analysis with respect to Tunisian law, see B Elbalti, ‘La compétence international des tribunaux tunisiens en matière contractuelle en l’absence de choix par les parties du tribunal compétent’ in S Ben Achour and S Triki (eds), Le code de droit international privé: vingt ans d’application (1998–2018) (Latrach Edition 2020). 160 This has been particularly challenging in some Gulf countries including the UAE, Kuwait, Qatar and Bahrain. On the law applicable to international contracts in those countries, see the relevant chapters in D Girsberger et al (eds), Choice of Law in Commercial Contracts: Global Perspectives on The Hague Principles (Oxford University Press 2021). 161 See ibid, notably the Bahrain and the UAE chapters, respectively, 420–21, paras 20.18–20.20; and 691–92, paras 39-06 and 39-07.

204  Béligh Elbalti a successful compromise,162 would also create more confusion than clarity in the Arab context. This is because Arab courts are not familiar with this notion and also because, in almost all MENA Arab countries, jurisdiction in contractual matters is usually based either on the place of the conclusion of the contract or the place of its performance.163 Even from the point of view of ‘exporting’ MENA Arab courts’ judgments, there are serious risks that many judgments would fail the test of jurisdictional filters. Indeed, many codifications in the region confer broad scope of international jurisdiction to their courts.164 Apart from very few exceptions,165 the general jurisdiction of MENA courts can be justified by the nationality of the defendant.166 Also, rules of special jurisdiction often include the place of conclusion of the contract,167 the location of the property, or the place of tort (including locus damni).168 Exceptionally, international jurisdiction can be based either on the presence of the defendant169 or justified by the rule of reciprocity.170 In addition, as indicated in section II.C.i.b above, MENA Arab courts are likely to disregard the agreement of the parties as to the competent court, making their judgments potentially rendered in violation of the agreement of the parties, and therefore unlikely to be enforceable abroad.

C.  Grounds for Refusal of Recognition and Enforcement Once the judgment is qualified for circulation, recognition and enforcement can be challenged based on the grounds exhaustively enumerated by the Convention. As briefly outlined

162 Garcimartín and Saumier (n 32) 98, para 180; A Bonomi and C Mariottini, ‘(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention’ (2018/19) 20 Yearbook of Private International Law 537, 555. 163 Bahrain (art 15(2) CCCP); Egypt (art 30(2) CCCP); Iraq (art 15(c) Civil Code); Jordan (art 28(2) CCP); Kuwait (art 24(b)CCCP); Lebanon (art 78(1) CCP); Libya (art 3(2) CCCP); Mauritania (art 35(1) CCAP); Oman (art 30(b) CCCP); Sudan (art 9(b) CCP); Syria (art 5(b) CCP); Yemen (art 80(2) CPE); Palestine (art 28(2) CCCP); Saudi Arabia (art 26(a) Sharia Courts Procedure); UAE (art 20(3) CCP). In addition, depending on the country, the performance of any obligation resulting from the contract would suffice to justify the taking of jurisdiction of the court. 164 In Morocco and Qatar, there are no explicit black letter rules on international jurisdiction. In Algeria, only jurisdiction based on the nationality of the parties (be they plaintiffs or defendants) is explicitly provided for by the law (arts 41 and 42 of the Algeria Civil Code). 165 Tunisia is a notable exception. See, Elbalti, ‘La compétence international des tribunaux tunisiens en matière contractuelle en l’absence de choix par les parties du tribunal compétent’ (n 159) 312. In Lebanon, jurisdiction based on the nationality of the defendant is possible only when no other courts have jurisdiction over the dispute (art 76 CCP). 166 Egypt (art 28 CCP); Iraq (art 14 Civil Code); Kuwait (art 23 CCPC); Mauritania (art 34 CCCAP); Oman (art 29 CCPC); Palestine (art 27 CCPC); Saudi Arabia (art 24 Sharia Courts Procedure Act); Sudan (art 7 CCP, but subject to the discretion (consent) of the court); UAE (art 19 CCP); and Yemen (art 78 CCPE). In Bahrain, Libya and Jordan, the law is not explicit on this point but can be inferred from the language used by the applicable rules. But, see the Supreme Court of Bahrain in Case No 77 of 11 April 2018 considering that exercising jurisdiction over Bahraini nationals was a manifestation of national sovereignty. 167 Lebanese law (art 78(1) CCP) specifies that this concerns ‘the performance of one of the principal obligations resulting from the contract’. A similar solution was adopted by one of the Tunisian Supreme Court decisions (Ruling No 9597/9589 of 8 October 2007). 168 Bahrain (art 15(2) CCCP); Egypt (art 30(2) CCCP); Iraq (art 15(b) and (c) Civil Code); Jordan (art 28(2) CCP); Kuwait (art 24(b) CCCP); Lebanon (art 78(1) CCP); Libya (art 3(2) CCCP); Mauritania (art 35(1) CCAP); Oman (art 30(b) CCCP); Palestine (art 28(2) CCCP); Saudi Arabia (art 26(a) Sharia Courts Procedure Act); Sudan (art 9(b) CCP); Syria (art 5(b) CCP); UAE (art 20(3) CCP); Yemen (art 80(2) CPE). 169 Libya (art 3(4) CCCP). cf P Lagarde, ‘La réciprocité en droit international privé’ (1977) 154 Collected Courses of the Hague Academy of International Law 149, 167. 170 Iraq (art 15(a) Civil Code). See Iraq Supreme Court Ruling No 880 (n 50) in which the Court seems to consider that since Iraqi courts are allowed to take jurisdiction when the foreign defendant is present in Iraq, they would eventually take jurisdiction when the foreign defendant is resident there.

Perspectives from the Arab World  205 in sections II and III above, most of these grounds have their corresponding grounds in the majority of MENA Arab jurisdictions and international conventions. Nonetheless, some of those grounds seem to be more restrictive whereas others can be shown to be quite problematic. This is particularly the case with the reference to ‘security or sovereignty of the recognizing State’ in Article 7(1)(c). Such a reference risks extending, beyond possible expectations, the scope of the already quite broad public policy defence. Some MENA Arab judges might be tempted to consider some ‘ordinary mandatory’ rules as concerning public policy (d’ordre public) and therefore related to the ‘national security and sovereignty’ of the State.171 The rule of lis pendens of Article 7(2) is also potentially problematic. This provision has no equivalent in the legislation of MENA Arab countries with the exception of Lebanon,172 but similar provisions can be found in the Riyadh Convention, the GCC Convention173 and some other bilateral conventions.174 It should be recalled that Article 7(2) allows the court addressed before which a dispute between the same parties on the same subject matter is pending to refuse or postpone recognition and enforcement of a foreign judgment upon the fulfilment of the following conditions: (1) the court is first seised with the dispute between the same parties and concerning the same subject matter; and (2) there is ‘a close connection between the dispute and the requested State’. Concerning (1), as indicated above, since recognition is not automatic, MENA Arab courts are likely to disregard foreign judgments if they have not been declared enforceable.175 Concerning (2), the ‘close connection’ requirement is likely to remain non-operational. As indicated above, most MENA Arab jurisdictions insist on the mandatory nature of international jurisdiction as a manifestation of the sovereignty of the State in the judicial field.176 Accordingly, once the jurisdiction of the court addressed is justified by one of the grounds of international jurisdiction admitted in its law, it is very unlikely that the same court concludes later that the dispute does not entertain a close connection with it.177 In any event, the courts do not enjoy the discretion to assess the appropriateness of their taking of jurisdiction,178 even in a lis pendens context.179 As shown in section II.B.i above, case law in some countries shows that the requested court is usually reluctant to give effect to foreign judgments where the dispute is already pending in the State addressed. This is even true not only when the foreign judgment has been rendered first, but when there is a pending exequatur proceeding that has been initiated before a new action on the merits is engaged.180 171 eg, art 3 FCTA defines public policy ‘to include matters relating to personal status … matters relating to sovereignty, freedom of trade, the circulation of wealth, rules of private ownership and the other rules and foundations upon which society is based, in such manner as not to conflict with the definitive provisions and fundamental principles of the Islamic Sharia’ (emphasis added). See also examples, above n 56 and 109. 172 Art 1016(b) CCP. See section II.C.ii.c. 173 See art 30(e) of the Riyadh Convention and its equivalent Art 3(d) of the GCC Convention. 174 For examples from conventions concluded by Tunisia, see Ben Achour, ‘les conflits de procédures et de décisions en droit international privé tunisien’ (n 79) 300 ff. 175 See, eg, UAE (Abu Dhabi Supreme Court Case No 31 (n 18)) refusing to recognise an Egyptian divorce judgment invoked by the defendant because it was not declared enforceable although the ‘recognition’ of foreign judgment is guaranteed by the bilateral convention as well as the multilateral conventions (notably the Riyadh Convention) concluded between the UAE and Egypt). 176 For an old case from Tunisia, see Tunis Court of Appeal Ruling No 32266 of 12 July 1973. 177 See, eg, the Tunisia Supreme Court Ruling No 55462/45589 of 25 January 2018. 178 See, eg, Qatar (Supreme Court Case No 226 (n 50) insisting on the correlation between the judicial function and the sovereignty of the State); UAE (Federal Supreme Court Case No 6 of 23 May 1995, Case 693 of 9 October 2005, Abu Dhabi Supreme Court Cases No 522 and 572 of 21 September 2011 considering that once the courts in the UAE have jurisdiction, they can decline it only in extremely exceptional situations such as the dispute relates to an immovable located abroad). 179 See, eg, UAE (Federal Supreme Court Case No 183 of 18 March 2001, Case No 294 of 28 January 1997). 180 See, eg, Tunisia (Tunis Court of Appeal No 25429 of 25 December 1996).

206  Béligh Elbalti

D.  Implication of Articles 15 and 23 of the 2019 HCCH Judgments Convention The HCCH 2019 Judgments Convention organises the implications of its possible interplay with the already existing enforcement regimes in two ways. First, Article 15 allows under certain conditions that recognition and enforcement be carried out under national law. Second, Article 23(2) and (3) give other international instruments priority of application, be they concluded before or after the Convention.181 It is true that the Convention adopts the principle of favor recognitionis under Article 15.182 However, it must be pointed out that this applies only in a case of interplay between national law and the HCCH 2019 Judgments Convention where national law is more liberal than the Convention. However, where other international instruments come into play, the principle of ‘effacement’ adopted by the Convention,183 is likely to yield some surprising results. For example, in 1991 the UAE and France concluded a bilateral convention dealing with the recognition and enforcement of foreign judgments.184 One of the peculiarities of this convention is that, under article 13(1)(b), enforcement can be refused on the ground that the law applied by the rendering court was different from the one that should have been applied in application of the choice of law rules of the forum even when the dispute concerns civil and commercial matters. This condition, which has never existed under UAE law, was excluded from the French domestic rules on foreign judgments in France in 2007.185 Now, let us assume that the UAE decides to ratify the HCCH 2019 Judgments Convention to which France is now a Member State after the EU ratified the Convention on 29 August 2022. Would a judgment that does not satisfy the test of the law applied according to the choice of law rules of the forum be enforced in both jurisdictions? In this situation, the HCCH 2019 Judgments Convention allows pursuing the enforcement of the judgment under Article 15. However, the application of Article 15 will arguably be possible only if there are no other applicable treaties given that, according to Article 23(2), the HCCH 2019 Judgments Convention ‘shall not affect the application by a Contracting State of a treaty that was concluded before this Convention’. Consequently, the ‘give-way rule’186 of Article 23(2) will keep unchanged the current situation. In other words, the principle of the supremacy of the Convention over domestic law will be maintained leading French courts to refuse the application of the more liberal requirements under domestic law. This is exactly the way in which the French Supreme Court decided on many occasions,187 including also in a case in which an Emirati judgment was sought to be enforced in France. In this case, the exequatur of an Emirati judgment

181 cf MBN Taquela and V Ruiz Abou-Nigm, ‘The Draft Judgments Convention and its Relationship with other International Instruments’ (2017/18) 19 Yearbook of Private International Law 449. 182 Garcimartín and Saumier (n 32) 146, para 326. 183 S Clavel and F Jault-Seseke, ‘La convention de La Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale: Que peut-on attendre?’ [2018–20] Travaux du comité français de droit international privé 183. 184 On this convention, see W Theus, ‘The Recognition and Enforcement of Foreign Civil and Commercial Judgments in the GCC-States’ (2020) 3 Tijdschrift voor Internationaal Privaatrecht 48, 55–56. 185 See French Supreme Court Ruling of 20 February 2007 known as Cornelissen v Avianca Inc. For an overview, see G Cuniberti, ‘The Liberalization of the French Law of Foreign Judgments’ (2007) 56 International & Comparative Law Quarterly 931, esp 938. 186 See Taquela and Ruiz Abou-Nigm (n 181) 465. 187 See, eg, the Rulings of the French Supreme Court of 21 September 2016 and 24 January 2018 respectively dealing with the enforcement of a Tunisian and Chinese judgment.

Perspectives from the Arab World  207 was rejected on the very ground of Article 13(1)(b) although the enforcement could have been possible under French domestic rules.188 As the above example clearly illustrates, by leaving unaddressed the question of what was eloquently described as ‘the dialogue of sources’,189 the impact of the HCCH 2019 Judgments Convention – including the eventual application of Article 15 – can be seriously undermined. This is especially true if one considers that the list of the conventions mentioned in Table 2 and Table 3 above will automatically be given precedence of application as a result of the interplay between Article 15 and Article 23(2). It is therefore regrettable that the Convention does not explicitly adopt the principle of ‘maximum effectiveness’ or follow what was described as ‘systematic coordination’ as some have strongly called for.190

E.  Incentives to Ratify the HCCH 2019 Judgments Convention If the above analyses are shown to be true, the eventual impact of the Convention in the MENA region will likely be confined only to cases where no international instruments apply and where the national law solutions are not as liberal as those provided for by the Convention. If this is the case, what would then be the incentives for MENA Arab jurisdictions to ratify the Convention? Generally speaking, the answer would depend on the purpose of such ratification. Some jurisdictions may show concern about how their judgments fare abroad and may indeed be eager to secure the enforcement of their judgments everywhere in the world, especially in those jurisdictions having restrictive enforcement regimes.191 The Convention here has its full utility. However, it must be acknowledged that not all jurisdictions show similar concerns. This is particularly true when the forum’s judgments are already likely to be recognised and enforced either under domestic law or existing international conventions. This is more so when the domestic rules are more lenient than those of the Convention.192 In this case, the decisive factor as to whether to ratify the Convention or not would depend more on the practical and concrete needs of the concerned State. States that do not place the development of their enforcement regimes on their priority list and those benefiting already from the application of liberal enforcement rules under domestic law would be less eager or willing to join the Convention. For this category of States, the argument – tirelessly repeated – that the enforcement of their judgments will be facilitated would not be meaningful. However, one should not forget the other side of the picture. As far as the MENA Arab jurisdictions are concerned, and taking into account that the enforcement rules and practices in those jurisdictions are not always in line with recent developments and trends in this field, the HCCH

188 See the French Supreme Court of 22 June 2016, comm C Chalas (2017) 1 revue critique de droit international privé 82. 189 Taquela and Ruiz Abou-Nigm (n 181) 452. 190 Taquela and Abou-Nigm (n 181) 451–52, 468–69, 474. In Tunisia, some scholars call for giving precedence to what is called ‘substantial hierarchy’ instead of insisting on ‘formal hierarchy’ in order to allow the application of the CPIL irrespective of the existence of the large network of bilateral and multilateral conventions. See, eg, Ben Achour, La réception des décisions étrangères dans l’ordre juridique tunisien (n 13) 24–31. Though it seems that some lower courts have adopted this approach (see, eg, Summary judgment of the Tribunal of First Instance of Tunis No 42028 of 25 September 2014), the Supreme Court has so far refused to do so (eg, Supreme Court Ruling No 55204 (n 52). 191 See, eg, the contribution of Geneviève Saumier and Linda Silberman, ch 8 in this volume. 192 On the general assessment of the need of an international convention taking into account the general movement of liberalisation of the enforcement regimes in different countries, see Elbalti, ‘Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Foreign Judgments’ (n 150) 264 ff. Questioning the policy of concluding conventions with Tunisia considering that indirect jurisdiction is understood to be abolished therein, see Elbalti, ‘The Jurisdiction of Foreign Courts and the Enforcement of their Judgments in Tunisia’ (n 44) 207.

208  Béligh Elbalti 2019 Judgments Convention can play an important streamlining role by indicating the direction that the said jurisdictions have to follow. Such a role corresponds with the Convention’s declared objective to set minimum standards for mutual recognition and enforcement of judgments.193 This can be particularly true with respect to some important questions such as the need to respect party autonomy and choice of court agreements and to adopt a reasonable approach to control the jurisdiction of the foreign courts; the necessity to guarantee the intrinsic qualities of foreign judgments from the point of view of procedural guarantees; and the need to limit to the greatest extent possible the role of public policy. The Convention can also be particularly helpful with respect to jurisdictions where the interpretation and application of reciprocity remain unpredictable. The joining of the Convention would unambiguously signal the commitment of a contracting State to enforce judgments of other Contracting States.194 From this point of view, taking into account the extraordinary developments that some MENA Arab jurisdictions – notably in some Gulf countries with the establishment of free zones and international commercial courts – have been witnessing, it can be confidently contended that the HCCH 2019 Judgments Convention can be used as an efficient instrument to promote their global attractiveness as dispute resolution and judgment friendly fora.195 In other words, by joining the HCCH 2019 Judgments Convention, the MENA Arab jurisdictions, whose enforcement systems are not necessarily regarded as friendly to foreign judgments, will not only consolidate their enforcement regimes in order to be more attractive to cross-border litigation, but also competitively engage in the global market of dispute resolution.

V.  External Challenges: The General Attitude of the MENA Arab Countries Towards the HCCH’s Work If one can judge from the MENA Arab countries’ adherence to the HCCH and the number of ratifications of the HCCH 2019 Judgments Convention, it does not seem to be peremptory to say that MENA Arab countries have so far shown a rather passive attitude towards the work of the HCCH. Indeed, of the 22 LAS Member States, only five countries have joined the HCCH as members.196 In addition, the ratification rate of the HCCH Conventions by the MENA Arab jurisdictions remains considerably low. Among the Member States, the situation runs the gamut of Jordan that has yet to ratify any of the HCCH Conventions, Saudi Arabia which has only recently ratified the HCCH 1961 Apostille Convention, to Morocco which stands as an exception with seven ratifications in its account. Egypt and Tunisia lie somehow in between with no more than three ratifications respectively.197 Some other MENA Arab countries, though not HCCH Member States, have ratified only few HCCH Conventions. Except for Kuwait which has four ratifications, the records of the Arab States concerned count no more than one ratification respectively.198 193 Garcimartín and Saumier (n 32) 146, para 326. 194 cf A Reyes, ‘Implications of the 2019 Hague Convention on the Enforcement of Judgments of Singapore International Commercial Court’ in RA Schütze, TR Klötzel and M Gebauer (eds), Usus atque scientia: Festschrift für Roderich C Thümmel (De Gruyter 2020) 707. 195 cf G Cuniberti, ‘Signalling the Enforceability of the Forum’s Judgments Abroad’ (2020) 1 Rivista di diritto internazionale privato e processuale 33. 196 These are (by order of adherence), Egypt (1961), Morocco (1993), Jordan (2001), Tunisia (2014) and Saudi Arabia (2016). 197 For details, see the country profile for each Member States, available at: www.hcch.net/en/states/hcch-members. 198 These include Lebanon, Bahrain, Oman, and Iraq. For details see the list of ‘Other Connected Parties’, available at: www.hcch.net/en/states/other-connected-parties and the profile of each country therein.

Perspectives from the Arab World  209 Some would see in this ‘minimum participation’ in the HCCH’s work the distancing of MENA Arab countries from universal standards in the treatment of private international law relationships.199 No matter how true this may seem to be, it is quite challenging to explain convincingly why MENA Arab countries have shown little interest in and have remained at the margin of the harmonisation process led by the HCCH.200 For some, because of its origins, the HCCH is nothing but ‘a Euro-centric and Western-dominated club of nations’201 and those nations have actively dominated the work of the HCCH and guided the orientation of its lawmaking policy.202 For others, this could be due to religious reasons especially when it comes to adherence to solutions that are particularly sensitive from a religious point of view.203 Others see the outdated, old-fashioned and parochial private international law systems as the main reason that explains such distancing.204 In the author’s view, some political reasons205 relating, inter alia, to the general instability in the region need to be taken into account. But, more importantly, the stagnation of legal research, the weakness of comparative law methodologies, and the general unsatisfactory quality of academic production render the MENA Arab jurisdiction insensitive to recent trends and developments in the field of private international law in general and the recognition and enforcement of foreign judgments in particular. To be convinced of this, one has simply to look at the legal framework for judgments enforcement which, apart from a few exceptions, has remained (almost) unchanged since its introduction – for some countries since the beginning of the last century.

VI.  Concluding Remarks This chapter has attempted to outline the enforcement system in the MENA Arab jurisdictions and to critically assess the possible impact that the 2019 HCCH Judgments Convention would 199 B Audit, ‘Le droit international privé en quête d’universalité’ (2003) 305 Collected Courses of the Hague Academy of International Law 142. However, although this might be relatively true from the point of view of formal ratification of the HCCH Conventions, the participation of certain Arab delegations during the drafting process of certain conventions might suggest quite the opposite. cf C Kessedjian, ‘Diversité de cultures et droit international privé – le rôle de la Conférence de La Haye de droit international privé’ in Direction Générale de la Coopération Internationale et Culturelle, Actes du congrès international du cinquantenaire du code civil égyptien (1948–1998) (El Kalema Press 1998) 201. Similarly, the ‘active participation’ of the Saudi delegation during the adoption process of the HCCH 2019 Judgments Convention was largely reported in local newspapers and magazines. See, eg, the official statement of the Ministry of Justice, available at: www.moj.gov.sa/English/MediaCenter/news/Pages/NewsDetails.aspx?itemId=394 which was largely reproduced in different other medias. 200 A comparable situation can be seen in Africa, see, eg, RF Oppong, ‘The Hague Conference and the Development of Private International Law in Africa: A Plea for Cooperation’ (2006) 8 Yearbook of Private International Law 189 as well as Abubakri Yekini and Chukwuma Okoli, ch 13 in this volume. 201 Terms taken from A Reyes, ‘The Hague Conference on Private International Law and Asia’ (2015) 14 Journal of International Law and Diplomacy 27, 29. 202 Though it is undeniable that the HCCH has widely diversified its membership during the last decades to cover countries belonging to different continents, cultures and traditions, it remains true that the top 39 countries (representing about 33% of total membership of the HCCH) that have ratified a minimum nine conventions are all but one exception (Australia) European countries. More interestingly, the top 10 of countries that have ratified at least 15 HCCH Conventions are all European countries. The majority of these countries are historically the original members of the HCCH. cf T Kono, ‘100 years of the Hague Conference of Private International Law – Past and Future’ (2005) 7 Japanese Yearbook of Private International Law 20. On the (wrong) fear that the HCCH Conventions would reflect Western bias, see Reyes, ‘The Hague Conference on Private International Law and Asia’ (n 201) 42. 203 See M Charfi, ‘L’influence de la religion dans le droit international privé des pays musulmans’ (1987) 203 Collected Courses of the Hague Academy of International Law 337; Audit (n 199) 142. 204 S Bostanji, ‘Les pays arabes et la Conférence de La Haye de droit international privé’ in Mélanges en l’honneur du professeur Farhat Horchani (La Maison du Livre 2021) 242. 205 eg, a proposal to accede to the HCCH 1971 Judgments Convention and its additional protocol was examined in Iraq. The proposal was rejected due to the fact that, inter alia, Israel was wrongly considered as a Contracting Party to the Convention. See: www.hjc.iq/view.68082/ (in Arabic).

210  Béligh Elbalti have on the enforcement systems in the region. The purpose, however, is not to undermine the substantive value of the Convention, but only to point out and highlight the possible challenges that the HCCH needs to take into account in its undertaking to promote the Convention globally, especially in regions where private international law (in theory and practice) is not well developed, as in the MENA region. From this perspective, structural challenges due to the complexity of existing enforcement regimes, the overall passive attitude of the MENA Arab jurisdictions towards the work of the HCCH, as well as the weak level of awareness of the need to modernise the enforcement regime in place are likely to constitute the serious challenges towards any possible ratification of the HCCH 2019 Judgments Convention. In this respect, the simple discourse based on the readability to enforce domestic judgments abroad might not be sufficient and would not be heard in the same way in all jurisdictions. The chapter also highlighted some potentially challenging aspects of the HCCH 2019 Judgments Convention, such as the impact of Article 15 and Article 23 or the implication of Article 13 on the principle of recognition. In this respect, the HCCH is invited to develop and promote interpretative tools that would facilitate the integration of the Convention taking specific national and regional contexts into account, including the weakness of comparative law research and (potential) language barrier. Such interpretative tools should emphasise favor recognitionis not only with respect to domestic law, but with respect to existing and future conventions. These are only some points, among others, that the HCCH can explore and use to its advantage to effectively promote the HCCH 2019 Judgments Convention (and its visibility) in the MENA region and beyond.

10 Perspectives from Southeast European and EU Candidate Countries ILIJA RUMENOV*

I.  Southeast European Countries: Overview The Southeast European (SEE) region traditionally refers to the Balkan Peninsula. Specifically, the SEE region consists of the following countries: Albania, Bosnia and Herzegovina (B&H), Bulgaria, Kosovo, Montenegro, North Macedonia, Croatia, Greece, Romania, Serbia, Slovenia and Turkey. The SEE region strives towards the European Union (EU) where five countries are Member States of the EU (Slovenia, Croatia, Romania, Bulgaria and Greece), five are candidate countries to the EU (Albania, Montenegro, North Macedonia, Serbia and Turkey), and two are EU potential candidates for accession1 (B&H and Kosovo).2 The region has a turbulent history. From the Balkan wars at the beginning of the twentieth Century, the First World War and Second World War, to the wars which followed the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) this region is in perpetual socio-economic change. This instability has left a serious impact on the socio-economic development of the region, considered to be among the poorest in Europe.3 During its existence, the SFRY consisted of six republics (B&H, Croatia, Macedonia, Montenegro, Slovenia and Serbia) and two autonomous provinces (Kosovo and Vojvodina) and they all shared same economic and legal system. The economic dynamics of the SEE region show that trade is predominantly oriented towards the EU4 with a significant influence of the regional trade on their economies.5 This is due to close * Assistant Professor in Private International Law, [email protected]; University Ss Cyril and Methodius – Skopje, Faculty of Law ‘Iustinianus Primus’ – Skopje, Bul Goce Delcev 9, 1000 Skopje, North Macedonia. 1 For more on the status of these countries and relations to the EU, see: ec.europa.eu/neighbourhood-enlargement/ countries/check-current-status_en. 2 This designation is, without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence. 3 eg, the EU average GDP per capita in 2020 is 33927$, while the SEE region countries that are not Member States of the EU: Albania – $5215; Bosnia and Herzegovina – $6031; Kosovo $4287; Montenegro – $7686; N Macedonia – $5888; Serbia $7666; and Turkey $8538. World Bank Data, available at: data.worldbank.org/indicator/NY.GDP.PCAP. CD?locations=Z7. 4 For more on the export and import of the SEE region see: INSTAT: www.instat.gov.al/al/temat/tregtia-e-jashtme/ tregtia-e-jashtme-e-mallrave/; Agency for Statistics of Bosnia and Herzegovina, available at: www.bhas.gov.ba/data/ Publikacije/Saopstenja/2021/ETR_02_2021_03_1_HR.pdf; Kosovo Agency of Statistics, External Trade of Goods, available at: ask.rks-gov.net/en/kosovo-agency-of-statistics/add-news/international-trade-statistics-april-2021; MONSTAT, available at: www.monstat.org/uploads/files/spoljna%20trgovina/2020/External%20trade%20of%20goods%20January%20 -%20december%202020%2C%20fin.pdf; NBRSM, available at: www.nbrm.mk/nadvoresno_trgovska_razmena.nspx]; Serbian Institute for Statistics, available at: www.stat.gov.rs/oblasti/spoljna-trgovina/; Turkish Statistical Institute, available at: data.tuik.gov.tr/Bulten/Index?p=Foreign-Trade-Statistics-November-2019-30663.

212  Ilija Rumenov historical connections between these countries and the fact that most of the countries are part of the Central European Free Trade Agreement (CEFTA).6 In addition, other relevant trading partners that have significant influence on the SEE region are China7 and the Russian Federation.8 The national private international law acts (PIL Acts) can be systematised in two groups based on the structure and legal influence on these Acts: the first group of SEE countries (B&H and Serbia) still apply the rules of the Socialist Federative Republic of Yugoslavia (SFRY) Law on the Resolution of Conflicts of Laws with Regulations of Other Countries in Certain Relations (PIL Act 1982)9 and basically apply the same private international law (PIL) provisions; the second group of SEE countries underwent a certain reform of their PIL rules based on the EU and on Hague Conference Conventions’ PIL rules (Albania,10 Kosovo,11 Montenegro,12 North Macedonia13 and Turkey).14 This division among the SEE countries is particularly important, as it shows the certain characteristics of the private international law ‘landscape’ of the region,15 and provides some explanation for the trends and the trajectory in the development of PIL.16

5 ibid. From this data of export/import trading partners it can be seen that in all of the SEE countries (except Turkey) a regional country is ranked among the top seven trading partners. 6 For more of the CEFTA Agreement see: cefta.int/. 7 For more on the interest of China in the HCCH 2019 Judgments Convention, see Zheng Tang, ch 14, section II, in this volume. 8 eg, Russia and China are the top two trading partners for Turkey and the second and fourth trading partner for Serbia, see above (n 4). 9 Official Gazette of Socialist Federative Republic of Yugoslavia, Nos 43/82 and 72/82. In the Federation of B&H, this Law was replaced by a Regulation with legal effect on recognition and application of federal laws (Official Gazette of Republic Bosnia and Herzegovina, No 2/92). This Regulation was subsequently enacted as a law (Official Gazette of Republic Bosnia and Herzegovina, No 13/94). In Republic Srpska, pursuant to Art 12 of the Law on Implementation of the Constitution of the Republic Srpska, all federal laws of the former SFRY were incorporated into the legal order of Republic Srpska provided they were not in contradiction with the effective legal order (Official Gazette of Republic Srpska, No 21/92). The Law on Resolution of Conflict of Laws with Regulations of Other Countries (Serbian Private International Law Act, hereafter Serbian PIL Act), Official Gazette of SFRY, Nos 43/82 and 72/82 – Amendment Official Gazette of FRY, No 46/96 and Official Gazette of RS, No 46/2006. 10 In Albania, the procedure for the recognition and enforcement is conducted according to the Civil Procedure Code (CvPC) (Law no 8116, of 29 March 1996 on Code of Civil Procedure of the Republic of Albania, [1998] OJ 138, as amended), while other PIL issues including international jurisdiction is regulated in Private International Law Act (Law 10 428 of 2 June 2011 on Private International Law in [2011] OJ 82). 11 Law No 08/L-028 on Private International Law (Official Gazette of the Republic of Kosovo, No 30/2022). 12 Private International Law Act (Official Gazette of the Republic of Montenegro, Nos 1/2014, 6/2014, 11/2014, 14/2014 and 47/2015). 13 Private International Law Act (Official Gazette of Republic of North Macedonia, No 32/2020). 14 Private International and Procedural Law Act of Republic of Turkey (Act No 5718) (Official Gazette in Turkey of 12 December 2007). Turkey has a particular position where Art 40(1) provides for a nexus between international and local jurisdiction. The international jurisdiction of Turkish courts is to be determined in accordance with the domestic rules of jurisdiction regulated by the Turkish Code of Civil Procedure (TCCP) (Official Gazette No 27836). Also some international jurisdictional aspects (consumer contracts, individual employment contracts insurance, prorogation of jurisdiction.) are covered in the Turkish PIL Act (Arts 44, 45, 46 and 47). Recognition and enforcement is provided in the Turkish PIL Act (Arts 50–59). 15 In this context it is important to mention the other SEE countries that are Member States of the EU (Slovenia, Croatia, Greece, Bulgaria and Romania), which also play important roles and have influence on the region and the developments in PIL. C Jessel-Holst, ‘The Reform of Private International Law Acts in South East Europe, with Particular Regard to the West Balkan Region’ (2016) 18 Anali Pravnog fakulteta Univerziteta u Zenici, Zenica 133, 135–37. 16 For more on the development of private international law in the SEE region, see Z Meškić, ‘Regional Convention on Jurisdiction and the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters (Sarajevo Convention) – A Perspective of Bosnia and Herzegovina’ in T Varady and J Knieper (eds), Liber amicorum: Gašo Knežević (Belgrade Arbitration Center 2016). There is another division between SEE region countries concerning reciprocity. Namely the ‘reformed’ PIL countries (with the exception of Turkey) do not require reciprocity as a condition for recognition and enforcement, while the other countries which apply the PIL Act 1982 provisions and Turkey do require reciprocity as a condition for recognition and enforcement.

SEE Countries (EU Candidates)  213 The SEE region inclination to be fully integrated in the EU does not preclude the intention of the countries to ease the circulation of judgments between them and to provide for meaningful methods of harmonisation of national laws with EU law. In the last 20 years, the PIL scene in SEE Europe, which is considered to be remarkably dynamic,17 worked on several possibilities to breach this gap18 out of which the potential SEE regional Convention on Jurisdiction and the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters (Sarajevo Convention) gathered largest attention.19 From this point, the future of the Sarajevo Convention is still uncertain and this leaves space for the HCCH 2019 Judgments Convention to fill this lacuna. Another approach taken by the SEE region countries is to conclude bilateral agreements that contain provisions for recognition and enforcement. Usually, these bilateral agreements do not refer solely to recognition and enforcement but also regulate cross-border cooperation in civil, commercial and criminal matters.20 The intention of this chapter is to give the legal specifics of the countries from the SEE region which are still not Members of the EU and with a notion of the impact of the HCCH 2019 Judgments Convention on the SEE region and the prospects of its implementation. In that manner, this chapter will cover the following countries of the SEE region: Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia and Turkey.

II.  The HCCH 2019 Judgments Convention and its Prospects in the SEE Region The architecture of the Judgments Convention is a simple one: if the judgment regarding civil or commercial matters is rendered in a country that satisfies the indirect jurisdictional grounds provided in Article 5 and if the grounds for refusal of recognition in Article 7 are not met, then the judgment can be recognised and enforced in a requested country. However, foreign judgments can be recognised and enforced under national law or other international conventions, with consideration to the exclusive base given in Article 6. Therefore three factors are

17 Jessel-Holst (n 15) 134. 18 Professor Kunda argued on three potential methods of harmonisation of national laws with EU law: transposition of the Brussels I, accession to the Lugano Convention or the conclusion of a new regional convention which would regulate the issues within the scope of the Brussels and Lugano Regimes. I Kunda, ‘The Question of an Appropriate Method: Incorporation of the Community Instrument, Invitation to Join the Lugano Convention or a New Convention?’ Collected Papers from the VIIth Private International Law Conference – Enlargement of the European Judicial Area to CEFTA Countries (Novi Sad 2010). 19 Meškić (n 16) 261. 20 For more on the bilateral agreements in force in these countries, see A Gugu Bushati, Country Report on the crossborder recognition and enforcement of foreign judicial decisions in Southeast Europe and perspectives of HCCH 2019 Judgments Convention – Albania (GIZ 2021); M Povlakić, Country Report on the cross-border recognition and enforcement of foreign judicial decisions in Southeast Europe and perspectives of HCCH 2019 Judgments Convention – Bosnia and Herzegovina (GIZ 2021); D Qerimi, Country Report on the cross-border recognition and enforcement of foreign judicial decisions in Southeast Europe and perspectives of HCCH 2019 Judgments Convention – Kosovo (GIZ 2021); M KostićMandić, Country Report on the cross-border recognition and enforcement of foreign judicial decisions in South East Europe and perspectives of HCCH 2019 Judgments Convention – Montenegro (GIZ 2021); I Rumenov, Country Report on the cross-border recognition and enforcement of foreign judicial decisions in South East Europe and perspectives of HCCH 2019 Judgments Convention – North Macedonia (GIZ 2021); S Đorđević, Country Report on the cross-border recognition and enforcement of foreign judicial decisions in South East Europe and perspectives of HCCH 2019 Judgments Convention – Serbia (GIZ 2021); C Süral Efeçınar, ‘Possible Ratification of the Hague Convention by Turkey and its Effects to the Recognition and Enforcement of Foreign Judgments’ (2020) 40 Public and Private International Law Bulletin 775, 802.

214  Ilija Rumenov substantially relevant for the Convention mechanism to be applied: first, the foreign judgment needs to be rendered in regard to civil or commercial matters21 (understood autonomously and uniformly according to Article 20);22 second, the foreign judgment needs to pass the test given by the jurisdictional filters in the Convention; and third, the judgment should not be refused for recognition and enforcement based on the grounds for refusal in Article 7. This mechanism must be seen together with Article 15 of the HCCH 2019 Judgments Convention (favor recognitionis) which broadens the modalities upon which a foreign judgment can be incorporated in the domestic legal system by allowing implementation of national legal rules regarding recognition or enforcement if the decision cannot be recognised and enforced under the Convention. The only limitation of Article 15 is that it does not apply to the situation referred to in Article 6 (exclusive indirect jurisdictional ground). With such a position it can be said that the intention of the HCCH 2019 Judgments Convention is to set out minimum standards for mutual recognition or enforcement of judgments.23 The ‘central’ provisions24 or the ‘heart’25 of the Convention are Article 5 and Article 6 which respectively deal with indirect jurisdiction and exclusive indirect jurisdiction. In such way, the understanding and their place in the HCCH 2019 Judgments Convention system is of utmost importance because they represent the link between the country of origin and the country of recognition.

A.  Structure and Types of Jurisdictional Filters in the HCCH 2019 Judgments Convention Article 5 and Article 6 of the HCCH 2019 Judgments Convention provide for the jurisdictional filters against which the judgment from the State of origin is to be assessed by the State where recognition or enforcement is sought.26 These two provisions become remarkably important for the Convention since for the Contracting Parties they will represent a consensus of what should be considered as appropriate in terms of the jurisdictional bases.27 Although there is a difference between the ‘direct’ and the ‘indirect’ jurisdiction, this section will give notion to the direct jurisdictional provisions provided in the PIL Acts of the SEE region countries and will elaborate them in context to the jurisdictional filters in Article 5 and Article 6.

21 Art 2 provides for an extensive list of matters excluded from the Convention. For more on the scope of application of the Convention, see Xandra Kramer, ch 1, section III, in this volume. 22 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020). 8; J Ribeiro Bidaoui, ‘The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations’ (2020) 67 Netherlands International Law Review 139, 141. 23 Garcimartín and Saumier (n 22) para 326, I Rumenov, ‘Implications of the new HCCH 2019 Convention on Recognition and Enforcement of Foreign Judgments and Enforcement of Foreign Judgments on the national legal systems of countries in South Eastern Europe’ (2019) 3 EU and Comparative Law Issues and Challenges 385, 390; M Weller, ‘The Jurisdictional Filters of the HCCH 2019 Judgments Convention’ (2019/20) 21 Yearbook of Private International Law 279, 281. 24 For more on Jurisdictional Filters, see Pietro Franzina, ch 3, section I, in this volume. 25 A Bonomi and C Mariottini, ‘(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention’ (2018/19) 20 Yearbook of Private International Law 537, 549. 26 Garcimartín and Saumier (n 22) para 134. 27 Pietro Franzina, ch 3, section I.B, in this volume.

SEE Countries (EU Candidates)  215

i.  Connections with the Defendant as a Jurisdictional Filter a.  Habitual Residence Article 5(1)(a) provides that a judgment is eligible for recognition or enforcement if the person against whom such recognition or enforcement is sought was habitually resident in the State of origin at the time that person became party to the proceedings. The HCCH 2019 Judgments Convention makes a distinction between the habitual residence of natural and legal persons, although only the latter is defined.28 This is the only jurisdictional filter that links solely to the person against whom recognition is sought while the other filters are referring to consent or to connections with the dispute giving rise to the judgment.29 The situation with habitual residence in the SEE countries is very diverse. In the Albanian PIL Act, habitual residence is the main criterion for the determination of the general jurisdiction.30 Moreover, the Albanian PIL Act contains a definition of habitual residence for both natural and legal persons, based on the definitions of habitual residence in the Rome I and the Rome II Regulation.31 According to Article 12 of the Albanian PIL Act, the habitual residence of a natural person is the place where he or she has decided to stay predominantly, even in the absence of registration and independent of a permit or authorisation. In order to determine this place, the court shall take into account the circumstances of a personal or professional nature that show durable connections with the place or indicate the will of the person to create such connections. The habitual residence of legal persons, associations or bodies without legal personality is the place of central administration. The habitual residence of a natural person acting in the course of his business activities is his principal place of business. In Kosovo and North Macedonia the situation is a bit different, since their respective PIL Acts provide for alternative use of both jurisdictional criteria regarding the general jurisdiction: domicile and habitual residence.32 So, the general jurisdiction of the Courts is established if the defendant (who is a natural person) has domicile or habitual residence in Kosovo/North Macedonia. There are separate provisions regarding the general jurisdictional criterion for legal persons in both (contentious and non-contentious) procedures that establish the jurisdiction of the courts of Kosovo/North Macedonia according to the seat of the legal person.33 In the context of the implementation of the HCCH 2019 Judgments Convention in North Macedonia, there is a potential problem for natural persons, although these situations will be rare. Namely, Article 5(1)(a) provides that the habitual residence of the person against whom enforcement is sought is when the party became a party to the proceedings. The Macedonian PIL Act establishes domicile or habitual residence of the defendant as a jurisdictional criterion for the determination of basic jurisdiction.34 Generally, such a provision is in line with the jurisdictional

28 When applying Art 5(1)(a) of the HCCH 2019 Judgments Convention towards legal persons regard has to be given to Art 3(2) of the HCCH 2019 Judgments Convention which provides that persons other than natural persons shall be deemed as habitually resident in a State, if their statutory seat, central administration, principal place of business is located or they were incorporated or formed under the law of that State. 29 Garcimartín and Saumier (n 22) para 140. 30 Art 71 of the Albanian PIL Act. For more on the position of habitual residence in the Albanian PIL Act, see A Gugu Bushati and A Dollani, ‘Albanian PIL Act and its Implementation in Judicial Practice’ (2016) 9 Anali Pravnog fakulteta Univerziteta u Zenici 147, 158. 31 Gugu Bushati, Country Report – Albania (n 20) 29. 32 Art 111(1) of the Kosovo PIL Act and Art 110 (1) of the Macedonian PIL Act. The identical jurisdictional criteria are also envisaged for non-contentious procedure; see Art 114 of the Macedonian PIL Act. 33 Art 111(1) and Art 116(1) of the Kosovo PIL Act; Art 110(1) and Art 114(1) of the Macedonian PIL Act. 34 Art 110(1) of the Macedonian PIL Act.

216  Ilija Rumenov filter provided in Article 5(1)(a) of the Convention, and usually the domicile will correspond with the habitual residence of the defendant. However, in the last 30 years North Macedonia and the region have been confronted with increased migration and this may give rise to a possible problem in the application of this jurisdictional filter in the case of natural persons. Namely, Macedonian courts traditionally determine the basic jurisdiction upon the domicile of the defendant despite the newly introduced jurisdictional criterion of habitual residence. Domicile is determined according to the Law on reporting domicile and temporary residence35 and is mostly of an administrative nature, however, with a subjective element incorporated in the notion.36 In practice, the court ultimately determines domicile upon personal documents issued by the Ministry of Internal Affairs,37 which sometimes do not correspond with the factual situation,38 as many people intentionally or by omission do not respect the obligation to register if they leave the country for longer than three months.39 As a result, there could be a hypothetical situation where courts in North Macedonia rightfully assume jurisdiction on the basis of Article 110 of the Macedonian PIL Act (domicile of the defendant) but the decision would not pass the jurisdictional filter provided in Article 5(1)(a) of the Convention, because the defendant’s habitual residence is in another country. One possible solution is the application of the habitual residence of the defendant as a jurisdictional criterion based on Article 110 of the Macedonian PIL Act instead of the domicile. Article 110 of the Macedonian PIL Act provides for both jurisdictional criteria and the fulfilment of one suffices. In these cases, if the court in North Macedonia determines jurisdiction based on the habitual residence of the defendant, this would mitigate the disparity between domicile and habitual residence and still provide for sufficient protection of the defendant.40 The Montenegrin PIL Act did not introduce habitual residence as a jurisdictional criterion for general jurisdiction.41 In Montenegro, the general jurisdiction for all types of contentious and non-contentious matters with a foreign element is based on the domicile of the defendant and by way of exception on the residence of the defendant who is a natural person.42 Habitual residence as a jurisdictional criterion for general jurisdiction is not provided in the B&H/Serbian PIL Acts. These two acts provide for the domicile of the defendant for natural persons as a criterion for determining general international jurisdiction.43 In the absence of

35 Official Gazette of the Republic of Macedonia, Nos 36/92, 12/93, 43/00, 66/07, 51/11, 152/15 and 55/16. 36 Art 2 of the Law on reporting domicile and temporary residence defines the term ‘domicile’ as ‘Domicile is the place where the citizen settled with the intent to permanently live there and has acquired an apartment for living’. 37 Art 128(4) of the Law on Civil Procedure, Official Gazette of the Republic of Macedonia, Nos 79/2005, 110/2008, 83/2009, 116/2010 and 124/2015. 38 The Ministry of Internal Affairs of Republic of North Macedonia does not maintain consistent records of the two categories of addresses – temporary residence and permanent domicile. Based on a simple declaration, citizens may be registered at a temporary address in the country, and allowed to vote there, although they are not living at the declared address, or might not have a domicile in the country. In spite of legal provisions obliging the MoIA to register citizens who left the country for longer than three months and did not declare it, and to conduct verifications of temporary address declarations, there was limited proactive action by the MoIA to update the address registry. This report found in correlation to the electoral roll that ‘The review process, which was observed by the four main political parties, led to a limited number of deletions, mostly of deceased people. In addition, 39,502 voters were identified as having “questionable registration” data and were required to re-register, and 171,500 voters were considered as temporarily residing abroad and were moved to a separate register of out-of-country voters’. OSCE/ODIHR Election Observation Mission Final Report, Early Parliamentary Elections, 11 December 2016, available at: www.osce.org/files/f/documents/8/b/302136.pdf. 39 Art 8 of the Law on Reporting Domicile and Residence. 40 Rumenov, Country Report – North Macedonia (n 20) 156–57. 41 Kostić-Mandić, Country Report – Montenegro (n 20) 125. 42 Art 99 of the Montenegrin PIL Act. 43 Art 46 of the B&H/Serbian PIL Acts.

SEE Countries (EU Candidates)  217 domicile, residence is the alternative jurisdictional criterion. With such approach, the B&H PIL Act does not correspond with the same criterion as the Convention, since this PIL Act relies on domicile (alternatively on residence) and the Convention relies on habitual residence.44 Moreover, regardless of the person’s domicile, if the defendant is a national of B&H/Serbia and resides there, the national courts of these states will have jurisdiction.45 Regarding legal persons, the B&H/Serbian court could determine the general jurisdiction if the defendant who is a legal person has their seat in B&H/Serbia respectively.46 This situation corresponds with one of the criteria provided in Article 3(2) of the Convention. The situation in Serbia can be described differently from the B&H position, although habitual residence is not envisaged as a jurisdictional criterion in the Serbian PIL Act.47 The Serbian PIL Act relies on domicile, if the defendant is a natural person, or seat, if the defendant is a legal person. Domicile is defined as the place where a natural person has settled with the intention of living there permanently, ie, the place where a natural person has the centre of his or her life activities, and his or her professional, economic, social and other relations confirm his or her permanent connection to that place.48 Compared with habitual residence such definition of domicile will correspond to the habitual residence of a defendant in almost all situations, which means that Serbian judgments could pass the jurisdiction filter of Article 5(1)(a) of the HCCH 2019 Judgments Convention. The problem described in North Macedonia about disrespect for the duty of persons to register if they leave the country is also present in Serbia.49 In context of the Serbian procedure, the court itself should determine and consider all facts necessary for the proper determination of a defendant’s domicile, and if it fails to do so, any party may bring evidence that the actual domicile of the defendant is in a foreign State, irrespective of the fact that it is formally registered in Serbia. In Serbian theory it is considered that the information on the registered domicile contained in the official documents represents a rebuttable presumption that the person to whom the official document relates is actually domiciled in that State.50 In essence, Article 5(1)(a) of the Convention seen in conjunction with Article 3(2), in regard to legal persons, corresponds with the jurisdictional criterion in the Serbian PIL Act which is the seat of a legal person. Namely, the legal person has a seat in Serbia if it has its central administration is in Serbia.51 It should also be mentioned that a legal person, incorporated or formed in accordance with Serbian law, must have its statutory seat in Serbia and almost always has its central administration in Serbia. It is hard to imagine that a legal person incorporated or formed under foreign law will have its statutory seat or its central administration in Serbia.52 In Turkey, the national provisions provide for habitual residence as a jurisdictional criterion in regard to general jurisdiction but only as an exemption to the domicile of the defendant.53 For those persons without domicile in Turkey, the localisation of the courts of general jurisdiction

44 Povlakić, Country Report – B&H (n 20) 49–50. 45 Art 46(3) of the B&H/Serbian PIL Acts. 46 Art 46 of the B&H/Serbian PIL Acts. 47 Đorđević, Country Report – Serbia (n 20) 190. 48 Art 3(2) of the Act on Domicile and Residence of Citizens, Official Gazette of RS, No 87/2011. 49 See S Đorđević, ‘Primena međunarodnog privatnog prava u javnobeležničkoj praksi’, available at: beleznik.org/ public/documents/upload/uputstvo_za_primenu_mpp_u_jb_praksi.pdf, 9. 50 A Jakšić, Međunarodno privatno pravo, opšta teorija (Pravni fakultet Univerziteta u Beogradu 2017) 326. 51 See Art 19 of the Serbian Company Law Act, Official Gazette of RS, Nos 36/2011, 99/2011, 83/2014 – oth law, 5/2015, 44/2018, 95/2018 and 91/2019. 52 Đorđević, Country Report – Serbia (n 20) 191. 53 Art 6(1) of the TCCP.

218  Ilija Rumenov shall be the court where these persons are habitually resident in Turkey.54 In relation to legal persons, in Turkey the domicile of the legal person is determined according to the place ‘where business is managed’.55 b.  Principal Place of Business (Natural Person) Article 5(1)(b) provides the jurisdictional filter for very limited, very narrow situations where a natural person against whom recognition or enforcement is sought, had their principal place of business in the State of origin at the time that person became a party to the proceedings in the court of origin and the claim on which the judgment is based arose out of those activities. Many of the SEE region countries do not recognise this jurisdictional criterion, principal place of business for natural persons conducting business activities, in their national PIL Act. Such a position is present in B&H,56 Turkey and Montenegro.57 The Serbian PIL Act does not recognise the principal place of business of a natural person as a jurisdiction criteria. However, the Serbian Company Law Act regulates the legal status of entrepreneur,58 a legally capable natural person who conducts business activities. This person has a registered seat which is defined as the place where he or she conducts business activities59 and is a jurisdiction criterion under the Serbian PIL Act. Therefore, with regard to entrepreneurs, Serbian courts can establish jurisdiction to rule on claims arising out of entrepreneur business activities, if they have a seat on the territory of Serbia.60 The Kosovo PIL Act and the Macedonian PIL Act under the influence of the Rome I and Rome II Regulation contain a definition for habitual residence for principal place of business for natural persons conducting business activities.61 The Albanian PIL Act contains this jurisdictional criterion, and provides that the habitual residence of a natural person acting in the course of his business activities is his principal place of business. c.  Bringing a Claim in the Main Proceedings (Claimant) One of the most obvious jurisdictional filters is Article 5(1)(c) which refers to judgments against the claimant of the main proceedings. The national PIL Acts do not have a specific jurisdictional criterion that covers this case, rather in this situation it is relevant only that the claimant is the person who brought the claim in the country of origin and that the claimant is the person against whom recognition and enforcement is sought. Therefore, for these cases, the direct jurisdictional rule applied by the court of origin becomes irrelevant and the key issue is whether the connection with the court of origin is met as a question of fact.62

54 ibid, Art 9. 55 Art 51 of the Turkish Civil Code (Law No 4721 of 22 November 2001), Official Gazette 18 December 2001, No 24607. 56 Povlakić, Country Report – B&H (n 20) 54. 57 Kostić-Mandić, Country Report – Montenegro (n 20) 128. 58 See Arts 83–92 of the Serbian Company Law Act. 59 ibid, Art 87. 60 Đorđević, Country Report – Serbia (n 20) 191. 61 Art 6(3) of the Kosovo PIL Act and Article 6(2) of the Macedonian PIL Act. 62 The requested State is limited only to the ‘jurisdictional filters’ given in Art 5 and is not allowed to apply the ‘mirror principle’ when assessing the connections with the State of origin. PA Nielsen, ‘The Hague 2019 Judgments Convention – from failure to success?’ (2020) 16 Journal of Private International Law 205, 214.

SEE Countries (EU Candidates)  219 d.  Branch, Agency or Other Establishment The situation in the SEE region countries in regard to this jurisdictional filter is not unified, but it has some similar characteristics. The group of ‘reformed’ PIL Acts’ countries (Albania, Kosovo, Montenegro and the Republic of North Macedonia) contains a similar provision.63 For these countries, influenced by the Brussels Ibis Regulation the implementation of this rule should be conducted without any problems, since the PIL Acts contain provisions regarding the determination of the jurisdiction of courts for cases that arise out of the operations of a branch, agency or other establishment, so long as they are situated in countries and the defendant does not have a statutory seat in their territory.64 If the defendant does have a statutory seat in their territory, then the general jurisdictional rules will determine the jurisdiction upon the statutory seat of the defendant provided in the PIL Acts (which are in line with the jurisdictional filter provided in Article 5 1(a) of the HCCH 2019 Judgments Convention).65 In the context of Turkey the situation is very similar. The Turkish CCP in Article 14(1) is also influenced by the Brussels regime66 and provides that for actions arising out of branch activity the court where the branch is situated shall also have jurisdiction under Turkish law. The other countries’ PIL Acts (B&H and Serbia) on the basis of the PIL Act 1982 recognise the jurisdictional criterion based on the defendant in the proceedings that before the court of origin maintained a branch, agency or other establishment without legal personality but they are conditioned with the contractual and non-contractual obligations in question and their place of contract and performance. Therefore, they are not oriented towards the defendant but rather towards the obligation – be it contractual or non-contractual.67

ii.  Consent to the Jurisdiction of the Court of Origin as a Jurisdictional Filter Article 5(1) of the Convention provides for jurisdictional filters that concern three forms of consent: express consent during proceedings (Article 5(1)(e)), implied consent (Article 5(1)(f)) and non-exclusive choice of court agreement of the parties (Article 5(1)(m)).68 a.  Express Consent to the Jurisdiction of the Court of Origin within the Main Proceedings as a Jurisdictional Filter The jurisdictional filter provided in Article 5(1)(e), refers to the explicit consent of the defendant, which was given during the course of the (main) proceedings. All of the SEE region countries contain a variant of the consent of the parties as a jurisdictional criterion. The SEE countries that have conducted a reform of their PIL jurisdictional rules, adopted a more liberal party autonomy in comparison to the countries that still apply the PIL Act 1982 provisions.

63 Art 80 (ç) of the Albanian PIL Act; Art 150 of the Kosovo PIL Act; Art 102 of the Montenegrin PIL Act; Art 149 of the Macedonian PIL Act. 64 ibid. 65 Art 71 of the Albanian PIL Act; Art 111 of the Kosovo PIL Act; Art 99 of the Montenegrin PIL Act; Art 110 of the Macedonian PIL Act. 66 B Çiçekli, ‘Jurisdiction, Recognition and Enforcement of Judgments under Turkish Law in Comparison with the Brussels I Regulation’ in P Beaumont and B Yüksel (eds), Turkish and EU Private International Law (On Iki Levha Yayincilik 2014) 37. 67 Art 55 of the B&H/Serbian PIL Acts. 68 For more on these jurisdictional filters, see Pietro Franzina, ch 3, section IV.B, in this volume.

220  Ilija Rumenov In Albania, prorogation of jurisdiction in favour of the Albanian courts is permitted by Article 73 of the PIL Act, which lays down certain requirements as to the form of the agreement. The agreement needs to be in writing or expressed orally, but the latter needs to have evidence in writing or in a form which accords with international commercial usages of which the parties are or ought to have been aware (Article 73(2) of the Albanian PIL Act). This provision does not stipulate whether the agreement is valid only when it is done prior to the commencement of the proceedings. Thus, it will depend on the court’s interpretation. The Montenegrin PIL Act stipulates that in matters in which an agreement on the jurisdiction of a Montenegrin court is allowed pursuant to Article 103, the jurisdiction of the Montenegrin court may be established by the consent of the defendant (Article 106(1) of the Montenegrin PIL Act). In addition, the Law on Civil Procedure addresses the situation when the jurisdiction of the domestic court depends on the consent of the defendant.69 In that context, Montenegrin decisions will pass the jurisdictional filter provided in Article 5(1)(e) of the HCCH 2019 Judgments Convention. The Brussels/Lugano regime and the HCCH 2005 Choice of Court Convention inspired these provisions on prorogation of jurisdiction in the Montenegrin PIL Act.70 Generally, the Montenegrin PIL Act incorporated the approach of removal of the parties affiliation nexus and the orientation towards the international character of their relationship. So, the parties may agree on the jurisdiction of a foreign judicial authority (one or more foreign courts) or domestic courts (one or more national courts) in matters in which they may freely decide, irrespective of their citizenship, domicile or residence, as long as there is an international character in their relationship.71 Prorogation of jurisdiction in the Montenegrin PIL Act is not without certain restrictions. The prorogation agreement will have no effect if the legal relations are covered with exclusive jurisdiction of the Montenegrin judiciary over a certain type of dispute, and if the dispute is a type of relation for which parties cannot agree on the jurisdiction because they cannot freely dispose of their rights.72 Moreover, the jurisdiction determined by an express consent of the parties (either domestic or foreign) shall be exclusive, except when otherwise agreed by the parties. In regard to the moment when this consent can be given, the Montenegrin PIL Act provides that an agreement on the jurisdiction of a court may be stipulated before a dispute arises, or after a dispute has arisen, in the form of a prorogation contract. In both cases, the emphasis is on contracting jurisdictions for disputes from particular relations.73

69 Art 9(3) of the Law on Civil Procedure reads as follows: ‘When in the course of a procedure, the court finds that a domestic court does not have jurisdiction over the dispute, it shall declare that it is not competent, annul the actions conducted in the procedure and reject the complaint, except in cases when jurisdiction of the domestic court is dependent on consent of the defendant whereby the defendant granted consent’. 70 The HCCH 2005 Convention has been in force in Montenegro since 8 January 2018. See, Kostić-Mandić, Country Report – Montenegro (n 20) 126. 71 ibid. 72 Art 104 of the PIL Act. For example, for a dispute over the transfer of property rights to immovable property located in Montenegro, the Montenegrin judiciary has exclusive jurisdiction, and any agreement of jurisdiction of a foreign court for this dispute will not produce legal effects in Montenegro. But, if it is a matter of choice of forum agreement for a dispute on the payment of damages due to non-execution of a contract for the sale of this immovable property, since this type of dispute does not fall under the exclusive jurisdiction of the Montenegrin judiciary, a judgment based on such an agreement could be recognised in Montenegro if it meets other, legally prescribed conditions. For more on the restrictions in the Montenegrin PIL Act, see Kostić-Mandić, Country Report – Montenegro (n 20) 126. 73 A general prorogation clause, on the basis of which a particular jurisdiction would have been assumed for all future disputes arising out of all legal relations of the parties, irrespective of the subject matter of the dispute, is not allowed, Kostić-Mandić, Country Report – Montenegro (n 20) 126.

SEE Countries (EU Candidates)  221 A similar approach in regard to the express consent as a jurisdictional criterion is taken in the Macedonian PIL Act.74 In correlation, to the express consent during proceedings (Article 5(1)(e) of the Judgments Convention),75 the provisions in the Macedonian PIL Act are influenced by the Brussels Ibis Regulation and the HCCH 2005 Choice of Court Convention. North Macedonia has signed the HCCH 2005 Choice of Court Convention and it is expected to ratify it. If North Macedonia becomes a Contracting Party to the HCCH 2019 Judgments Convention, then the distribution of the judgments recognised and/or enforced according to these instruments will be conducted on the ‘either or’ principle.76 Very similar to the Montenegrin and North Macedonian provisions, the influence and the solutions of the Brussels/Lugano regime and the HCCH 2005 Choice of Court Convention are also present in the PIL Act of Kosovo.77 The Turkish PIL Act contains a specific provision for prorogation of jurisdiction of a foreign Court. Article 47 of the Turkish PIL Act provides that: Except in cases where the jurisdiction of a court is determined according to exclusive jurisdiction of specific court principles, the parties may agree on jurisdiction of a court of foreign state in a dispute that contains a foreign element and arises from obligatory relations. The agreement is invalid unless it is proved by written evidence. The competent Turkish court shall have jurisdiction only if the foreign court decides that it has no jurisdiction or if a plea as to jurisdiction is not presented in Turkish courts.

This rather simple provision contains several characteristics in the context of the HCCH 2019 Judgments Convention: first, this provision, as in the other PIL Acts, provides for the removal of the parties’ affiliation nexus and the orientation towards the international character of their relationship; second, this provision contains limitations connected to the exclusive jurisdiction of the Turkish courts; and, third, this provision’s subject matter is a bit broader than Article5(1)(e) of the Convention, since it is not limited to choice of court agreements expressed during the course of the proceedings. Such a position is important since Turkey is not a Contracting Party of to the HCCH 2005 Choice of Court Convention. The other group of SEE countries, B&H and Serbia, contain similar rules regarding express consent to the jurisdiction based on the PIL Act 1982 rules. First, these rules provide connection for the choice of court agreements with the nationality or seat of the parties and, second, they exclude the relations which are covered with exclusive jurisdiction.78 In regard to the first limitation, the parties can agree on jurisdiction of a court in B&H/Serbia only if one of them is a B&H/ Serbian citizen or has a seat in the respected States, and further, the parties can agree on the jurisdiction of a foreign court only if one of them is a national or has a seat in a foreign state.79 For the 74 Arts 122–25 of the Macedonian PIL Act. 75 Garcimartín and Saumier (n 22) para 160. 76 For more on relationship between the HCCH 2019 Judgments Convention and the HCCH 2005 Choice of Court Convention, see Paul Beaumont, ch 6, section I, in this volume. 77 Arts 123–26 of the Kosovo PIL Act. 78 Art 49 of the B&H/Serbian PIL Acts. 79 Art 49(1) and (2) of the B&H/Serbian PIL Acts. Serbian courts have been very strict in applying their own procedural rules, even at the expense of an agreement for jurisdiction of a foreign court. The Commercial Appeals Court has turned down a defendant’s appeal on grounds of jurisdiction because his objection on the grounds that the parties had an agreement on jurisdiction was given at a later stage in the proceedings before the Basic Commercial Court (Decision of the Serbian Commercial Court of Appeals, Pž 10343/2011 of 18 January 2012). In another legal opinion that was given by the sitting Division on Commercial Disputes of the Serbian Supreme Commercial Court, the Court opined that two foreign parties may only litigate a case before Serbian courts if they are entitled to on another legal basis, eg Art 54(2) in this case, because they would not be allowed by virtue of Art 49(2) to agree on the jurisdiction of these courts since none of them have a seat in the Republic of Serbia (Legal Opinion adopted by the Commercial Disputes Division of the Higher Commercial Court, held on 26 March 2007, Case Law of Commercial Courts Bulletin No 1/2007), as cited by Qerimi, Country Report – Kosovo (n 20) 96.

222  Ilija Rumenov second limitation, the dispute in question must not fall under the exclusive jurisdiction of B&H/ Serbian courts.80 Lastly, these rules specifically exclude family law relations from the possibility of prorogation of jurisdiction.81 b.  Submission as a Jurisdictional Filter The second modality of consent as a jurisdictional filter is provided in Article 5(1)(f) and refers to the question of implied consent as a jurisdictional filter.82 The Albanian PIL Act provides for submission as a jurisdictional criterion. Article 73(3) of the Act states that: The Albanian court in which a lawsuit is brought has international jurisdiction if the defendant enters an appearance without contesting the international jurisdiction, even though the defendant is represented in the proceedings by a lawyer, or the court has explained the possibility of contesting the jurisdiction and this explanation has been noted in the record of the hearing.

The Montenegrin PIL Act, in addition to the explicit agreement of the parties, provides for consent of the defendant as a jurisdictional criterion for establishing jurisdiction in situations where an agreement on the jurisdiction of a Montenegrin court is allowed. If the defendant has filed a written response to a claim or a complaint against a payment order, or by pleading the merits without having contested jurisdiction then it can be considered that it has given consent for a Montenegrin court to have jurisdiction.83 Moreover, a defendant is deemed to have given consent for the jurisdiction of a Montenegrin court if he has filed a counterclaim or a complaint against a payment order, if at the preliminary hearing, or if there was no such hearing, at the first hearing on the merits he entered into discussion without having contested jurisdiction, or if he has filed a counterclaim.84 In that position, the Montenegrin decisions based on submission fulfil the requirements of Article 5 of the Convention. Similarly, to the approach taken in the Montenegrin PIL Act, the Kosovo PIL Act and the Macedonian PIL Act also give several alternatives for submission such as: the defendant has submitted a response to the claim without contesting jurisdiction; has argued on the merits and did not contest jurisdiction or file a counterclaim.85 The latest point for contesting jurisdiction is the preliminary court hearing, or in the case of no preliminary court hearing, at the first court hearing on the merits.86 As is the case in Article 26(2) of the Brussels Ibis Regulation, in matters where a policyholder, an insured, a beneficiary of an insurance contract, an injured party, a consumer or an employee is the defendant, the court shall, before assuming jurisdiction, ensure that the defendant is informed of his right to contest the jurisdiction of the court, and of the consequences of entering or not entering an appearance.87 So for cases of submission, judgments rendered from the courts of Kosovo and North Macedonia could circulate under the Convention.

80 Art 49(1) of the B&H/Kosovo/Serbian PIL Acts. 81 ibid, Art 49(3). 82 For more on the development of this provision into the HCCH 2019 Judgments Convention, see Pietro Franzina, ch 3, section IV.C, in this volume; G Saumier, ‘Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention’ (2020) 67 Netherlands International Law Review 49. 83 Art 106 of the Montenegrin PIL Act. 84 ibid, Art 106. 85 Art 126(1) of the Kosovo PIL Act and Art 125(1) of the Macedonian PIL Act. 86 ibid. 87 Art 126(2) of the Kosovo PIL Act and Art 125(2) of the Macedonian PIL Act.

SEE Countries (EU Candidates)  223 The Turkish law also provides for the tacit prorogation of Turkish courts. If the defendant contests the international jurisdiction of Turkish courts, it should object to the jurisdiction. In situations where the defendant did not contest the jurisdiction of the Turkish courts by way of an initial plea, then the defendant would be considered to have accepted the international jurisdiction of the Turkish court.88 The PIL Act 1982 contained a rather simple provision regarding submission. Article 50 of the PIL Act 1982 provides that ‘the defendant has given consent by lodging a reply to the action or objection to a payment order without contesting jurisdiction or if he/she has argued on the merits’. This rule, which is applied in B&H and Serbia, will eventually be in line with the jurisdictional filter provided in Article 5(1)(f) of the HCCH 2019 Judgments Convention. c.  Non-Exclusive Choice of Court Agreements as a Jurisdictional Filter The third modality of consent as a jurisdictional filter refers to non-exclusive choice of court agreements.89 This modality is intended to cover non-exclusive choice of court agreements that were left out of the general system of the HCCH 2005 Choice of Court Convention.90 From the SEE region, the HCCH 2005 Choice of Court Convention is applicable only in Montenegro. North Macedonia signed this Convention in 2019, but it is still not ratified by the Assembly of the Republic of North Macedonia. Albania, B&H, Kosovo and Serbia are not parties to the HCCH 2005 Choice of Court Convention. Montenegro, as a contracting party to the HCCH 2005 Choice of Court Convention, introduced provisions on the same subject matter in line with the Convention in the Montenegrin PIL Act (Articles 103 and 104) and fully harmonised its legislation with the definition of a choice of court agreement as per Article 5(1)(m) of the HCCH 2019 Judgments Convention. The Kosovo PIL Act and the Macedonian PIL Act, highly influenced by the Brussels Ibis Regulation and the HCCH 2005 Choice of Court Convention, provide direct jurisdictional rules regarding express and implied consent.91 Parties can agree on the jurisdiction before and after the dispute has arisen in connection with a particular legal relationship92 and the choice of court agreements can be exclusive or non-exclusive depending on the will of the parties.93 For the other States, their PIL Acts do not make a distinction between exclusive and nonexcusive choice of court agreements, thus they regulate prorogation of jurisdiction which covers both express and implied consent to the jurisdiction as well as non-exclusive choice of court agreements, so the judgments rendered by their Courts whose jurisdiction was established in one of these ways could be eligible for recognition and enforcement under the HCCH 2019 Judgments Convention94 except for the scenario where a judgment is rendered by a Court seised on the basis of an exclusive choice of court agreement made prior to the proceedings and that State is not a party to the HCCH 2005 Choice of Court Convention but has ratified the HCCH 2019 Judgments Convention. In this scenario, according to Article 15 of the HCCH 2019 Convention, recognition or enforcement can be conducted according to national rules. To avoid such complex interplay

88 Çiçekli (n 66) 53. 89 For more on this jurisdictional filter, see Pietro Franzina, ch 3, section IV.C, in this volume; see also, Beaumont, ch 6, section III.B, in this volume. 90 ibid. 91 Arts 123–26 of the Kosovo PIL Act and Arts 122–25 of the Macedonian PIL Act. 92 Arts 123 and 124 of the Kosovo PIL Act and Arta 122 and 123 of the Macedonian PIL Act. 93 Art 123(2) of the Kosovo PIL Act and Art 122(2) of the Macedonian PIL Act. 94 Đorđević, Country Report – Serbia (n 20) 192.

224  Ilija Rumenov between national and conventional provisions, and to provide for the creation of a comprehensive system of circulation of judgments based on choice of court agreements, the SEE region should ratify both HCCH instruments.

iii.  Connections between the Claim and the Court of Origin as a Jurisdictional Filter a.  Contractual Obligations Article 5(1)(g) of the HCCH 2019 Judgments Convention provides for a jurisdictional filter on the basis of the legal relations that are in question which are the contractual relations.95 Albania contains specific provision in Article 80(b) that provides special jurisdiction in regard to contracts based on ‘actions concerning a contract or claims that arise from a contract where the place in which the obligation was performed or should have been performed is located in the Republic of Albania’. This solution in the Albanian PIL Act is rather specific because from the SEE countries that modernised their PIL Act it diverges from the rules in the Brussels regime. Namely, the Albanian PIL Act contains only a general rule regarding the place of performance in Albania, and does not provide for separate jurisdictional criteria for the contracts relating to sale of goods and contracts relating to services.96 On the other hand, the Montenegrin PIL Act, the Kosovo PIL Act and the Macedonian PIL Act mimic the provisions of Article 7(1)(a) and (b) of the Brussels Ibis Regulation. Article 123 of the Montenegrin PIL Act, Article 146 of the Kosovo PIL Act and Article 145 of the Macedonian PIL Act first provide that the Montenegrin, Kosovo or Macedonian court has jurisdiction in cases regarding contractual relations when the place of performance of the obligation is or should be located in Montenegro, Kosovo or North Macedonia; and second, unless the parties agree otherwise, the place of performance of the obligation is considered to be in Montenegro, Kosovo or North Macedonia regarding contracts for sale of goods or contracts for services if under the contract, the goods were delivered or should have been delivered in Montenegro, Kosovo or North Macedonia, or under the contract, the services were provided or should have been provided in Montenegro, Kosovo or North Macedonia. In Turkey, Article 10 of the TCCP provides that in matters relating to contracts, it is possible to initiate an action in the courts of the place of performance of the obligation in question. The determination of the place of performance would be according to the substantive law applicable to the contract determined by Article 24 of the Turkish PIL Act.97 The situation of the SEE countries that still apply the PIL Act 1982 is rather complicated. Article 54 and Article 55 of the B&H/Serbian PIL Acts provide for special jurisdiction in regard to commercial and contract matters but in a circuitous manner. Article 54 provides that ‘in disputes on pecuniary claims, the court of the B&H/Serbia shall have jurisdiction if the defendant’s property or the object claimed is situated in the territory of the B&H/Serbia’.98 Moreover,

95 For more on this jurisdictional filter, see Pietro Franzina, ch 3, section IV.B, in this volume. 96 In a decision by the Albanian Court (HC Decision 331, dated 30.05.2013), the Court seised jurisdiction based on Art 80(b) of the Albanian PIL Act. The case was in regard to contractual obligations arising out of a sale contract where one of the parties failed to fulfil the obligations specified in the contract. The High Court granted international jurisdiction to the Albanian court, based on Article 37 of the Code of Civil and the Article 80/b of the law, stating that the place of the performance of the contractual obligation was Albania (lex loci executions) based on the contractual facts that goods have to be delivered in Albania. As cited by Gugu Bushati and Dollani (n 30) 162–63. 97 Çiçekli (n 66) 53. 98 Art 54(1) of the B&H/Serbian PIL Acts.

SEE Countries (EU Candidates)  225 B&H/Serbian courts’ jurisdiction exists ‘in disputes concerning obligations created at the time when the defendant was present in B&H/Serbia’.99 Article 55 of the B&H/Serbian PIL Acts refers directly regarding special jurisdiction in relation to contractual relations and provides jurisdiction to the B&H/Serbian courts to rule over disputes concerning obligations created or that are to be performed in these countries against a foreign defendant, if such a person has an agency or representative in the country. Evidently the inspiration for Article 54 was the German Civil Procedure Code (ZPO) Article 23 that provides for jurisdiction over foreign defendants for as long as their assets were located within the territory of Germany and such approach is considered exorbitant.100 Since these provisions were manifesting many ambiguities in their implementation,101 in the last 40 years they have produced further interpretation by legal doctrine102 and practice.103 Many of these gaps are filled with provisions from other procedure laws. The Serbian Law on Contentious Procedure104 in Article 53(3) provides that the Serbian court has jurisdiction to rule on cases concerning obligations which should be performed in Serbia. There is also a special jurisdiction provision in Article 481(1) of this law for cases concerning commercial contracts, according to which the Serbian court has jurisdiction to rule on the validity, breach or performance of a contract if the defendant, according to the agreement of the parties, had to perform the contractual obligations in Serbia. This overview of the correlation between national PIL provisions in the SEE region countries and the impact of the Brussels regime raises concerns that decisions regarding contracts would not pass the filter provided in Article 5(1)(g) of the Convention. Albania has a special jurisdiction provision that is very similar to the jurisdictional filter in Article 5(1)(g) of the HCCH 2019 Judgments Convention. Montenegro, Kosovo and North Macedonia share similar faith in the Brussels regime and some decisions regarding contractual obligations will not pass the jurisdictional filter in Article 5(1)(g). For other countries, Article 5(1)(g) requires more criteria for establishing a sufficiently strong connection to the State of origin with the result that judgments from these countries will rarely pass this jurisdiction filter. However, such decisions can be recognised and enforced in other States according to other jurisdictional filters set forth in Article 5 or according to national rules according to Article 15 of the HCCH 2019 Convention. b.  Immovable Property The Convention contains several jurisdictional filters regarding immovable property.105 The SEE region countries are generally applying the forum rei sitae principle regarding rights in rem. All of these countries provide for exclusive jurisdiction regarding rights in rem, however, they differ in regard to the tenancy of immovable property. The Albanian courts have exclusive

99 ibid, Art 54(2). 100 M Weser, ‘Bases of Judicial Jurisdiction in the Common Market Countries’ (1961) 10 American Journal of Comparative Law 323, 327. 101 For detailed analyses of these provisions, see Qerimi, Country Report – Kosovo (n 20) 100–04. 102 M Dika, G Knežević and S Stojanović, Komentar Zakona o međunarodnom privatnom i procesnom pravu, (Nomos 1991) 198–202; M Stanivuković and M Živković, ‘Međunarodno privatno pravo’ (Official Gazette 2008) 169. 103 Decision of Supreme Commercial Court No Pž. 415/97 of 5 March 1997, Bulletin No 2/1998; Legal Opinion adopted by the Commercial Disputes Division of the Higher Commercial Court, held on 26 March 2007, Case Law of Commercial Courts Bulletin No 1/2007; Decision of High Court in Subotica No Gž 605/2011 of 13 September 2011; Decision of the Commercial Appellate Court, Pž 9461/2011 of 25 July 2012. 104 Law on Contentious Procedure, Official Gazette of the Republic of Serbia, Nos 72/2011, 49/2013, 55/2014, 87/2018 and 18/2020. 105 Arts 5(1)(h), 5(3) and 6. For more on this jurisdictional filter, see Pietro Franzina, ch 3, section IV.B, in this volume.

226  Ilija Rumenov jurisdiction on rights in rem in immovable property disputes involving property rights and other related rights, immovable objects, rent issues, as well as rights stemming from the use of immovable property for compensation (Article 72 of PIL Act). Turkey, on this point, has a very liberal approach. Although the TCCP provides for exclusive jurisdiction in regard to the rights in rem when the property is located in Turkey, the actions relating to personal rights over immovable property do not fall under the exclusive jurisdiction of Turkish courts and thus they do not have to be initiated in front of the court where the property is situated.106 The Macedonian PIL Act provides for a set of jurisdictional rules regarding rights in rem and tenancies. Article 141 of the Macedonian PIL Act (heavily influenced by Article 24 of the Brussels Ibis Regulation) first provides for exclusive jurisdiction of the court in North Macedonia, regarding rights in rem of immovable property or tenancies of immovable property. However, Article 141(2) of the Macedonian PIL Act provides an exclusion from the exclusive jurisdiction of courts in North Macedonia regarding short-term tenancies (modelled according to Article 24(1) of the Brussels Ibis Regulation and Article 22(1) of the Lugano Convention) if the tenancies of immovable property are concluded for temporary private use for a maximum period of six consecutive months and also if the tenant is a natural person and the landlord and tenant are domiciled in the same Member State. With such a position it is expected that the judgments coming from the courts of North Macedonia in most of the cases will base their jurisdiction for the cases regarding immovable property and tenancies on the fact that the immovable property is situated in North Macedonia, providing for exclusive jurisdiction, except for short-term tenancies which could only in limited situations be given a concurrent jurisdiction. The Kosovo PIL Act107 and the Montenegrin PIL Act contain identical provisions.108 In other SEE region countries, Article 56 of the B&H/Serbian PIL Acts provides for exclusive jurisdiction of B&H/Serbian courts in disputes on ownership and other real rights on immovable property, in disputes concerning the disturbance of peaceful possession of immovable property, as well as in disputes arising from leasing of immovable property, or from contracts on use of the apartment or business premises, if the immovable property is situated in the territory of B&H/ Serbia. The understanding of this provision in theory is that the term ‘other rights in rem’ covers all real rights, in addition to ownership, which can be acquired on immovable property under national law.109 Moreover, it is specific for these countries that they do not differentiate long-term leases from short-term leases of immovable property with regard to jurisdiction. c.  Contractual Obligations Secured by Rights in rem in Immovable Property Article 5(1)(i) of the HCCH 2019 Judgments Convention is positioned as a jurisdictional filter regarding judgments that concern contractual obligations which are secured by rights in rem in immovable property.110 The PIL Acts of the SEE countries take two different approaches to this particular situation with similar effect. Namely, the PIL Acts in Kosovo, Montenegro and North Macedonia provide

106 eg, claims regarding rental charges do not relate to rights in rem in immovable property and can be brought in a court other than the court where the immovable property is located, Çiçekli (n 66) 41–42. 107 Art 142 of the Kosovo PIL Act. 108 Art 119 of the Montenegrin PIL Act. 109 See more M Stanivuković and P Đundić, ‘Međunarodno privatno pravo, posebni deo’ (Pravni fakultet, Centar za izdavačku delatnost 2008) 49–51; Dika, Knežević and Stojanović (n 102) 202–03. 110 For more on this jurisdictional filter, see Pietro Franzina, ch 3, section IV.B, in this volume.

SEE Countries (EU Candidates)  227 provisions regarding related actions.111 A Kosovo, Montenegrin or North Macedonian court that has jurisdiction to hear one of several actions shall also have jurisdiction to hear other actions if they relate to the action that the Kosovo, Montenegrin or North Macedonian court has jurisdiction over (the actions shall be deemed related if the connections among them are so close that it is justified to hear and determine them together to avoid the risk of irreconcilable judgments if the actions were heard separately).112 Regarding the specific scenario (contractual obligations secured by rights in rem in immovable property) the doctrine is unanimous that exclusive jurisdiction of Kosovo, Montenegrin or North Macedonian courts exists only regarding the proprietary legal effects of contracts on immovable property, thus by way of analogy, a judgment will be eligible for recognition if it is ruled against the defendant on a contractual obligation secured by a right in rem on immovable property located in Kosovo, Montenegro or North Macedonia, if the contractual claim was brought together with a claim against the same defendant relating to the right in rem.113 The other approach differentiates in context between the related actions. The PIL Act 1982 did not contain a specific provision on related actions. Instead through interpretation of Article 56 of the PIL Act 1982, the exclusive jurisdiction was attributed to all contractual obligations relating to immovable property.114 As a consequence, only if a claim relating to a right in rem in immovable property in B&H/Serbia which served as security was brought together with a contractual claim against the same defendant before a B&H/Serbian court, the judgment rendered in such a case would pass this jurisdiction filter. Turkey also has a similar approach.115 d.  Non-Contractual Obligations Article 5(1)(j) of the HCCH 2019 Judgments Convention contains a jurisdictional filter covering non-contractual obligations.116 The position in the SEE region regarding the special jurisdiction in cases of non-contractual obligations is conflicting. The scope of application in all the SEE region countries regarding noncontractual obligation is much broader than in the Convention.117 While most of the countries contain specific provisions regarding non-contractual obligations, their jurisdictional filters differ. The ‘reformed’ PIL Acts – Albanian, Montenegrin and Macedonian – provide for the place where the act or omission directly causing such harm occurred, irrespective of where that harm occurred as a jurisdictional criterion.118 Such approach is also taken in the Turkish CCP.119 Kosovo also provides for this jurisdictional criterion, but expands the jurisdiction of its courts with the situations when the damage occurred or may occur in its territory.120 This in essence means that although some judgments will pass this jurisdictional filter, the restrictive approach

111 Art 113 of the Kosovo PIL Act; Art 101 of the Montenegrin PIL Act; and Art 112 of the Macedonian PIL Act. 112 ibid. 113 Kostić-Mandić, Country Report – Montenegro (n 20) 129. 114 E Muminović, ‘Procesno međunarodno privatno parvo’ (Pravni fakultet Univerziteta u Sarajevu 2007) 46. 115 Çiçekli (n 66) 41–42. 116 For more on this jurisdictional filter see Pietro Franzina, ch 3, section IV.B, in this volume. 117 Gugu Bushati, Country Report – Albania (n 20) 31; Povlakić, Country Report – B&H (n 20) 54; Qerimi, Country Report – Kosovo (n 20) 104; Kostić-Mandić, Country Report – Montenegro (n 20) 129; Rumenov, Country Report – North Macedonia (n 20) 160; Đorđević, Country Report – Serbia (n 20) 193. 118 Art 80(c) of the Albanian PIL Act; Art 126(1) of the Montenegrin PIL Act; and Art 148(1) of the Macedonian PIL Act. 119 Art 16 of the TCCP. This provision contains another jurisdictional criterion that is the domicile of the injured party which is not present in the other PIL Acts. See Çiçekli (n 66) 40. 120 Art 149(1) of the Kosovo PIL Act.

228  Ilija Rumenov of Article 5(1)(j) of the Convention will eliminate a large number of non-contractual obligation judgments. However, if the judgments could not be recognised or enforced according to this jurisdictional filter, then the other jurisdictional filters in Article 5(1) can apply or eventually Article 15 will provide for recognition and enforcement of foreign judgments according to national rules. The SEE countries that apply the PIL Act 1982 provisions provide for different jurisdictional criteria than those in the HCCH 2019 Judgments Convention. The Convention puts the act or omission causing harm (death, physical injury, damage to or loss of tangible property) in focus, not the consequences of a harmful event (‘irrespective of where that harm occurred’). The national PIL Acts of the respective countries rely on the place where the damage occurred.121 These laws stipulate the following provision: [I]n disputes on non-contractual liability for damages the court of [B&H/Serbia] shall have jurisdiction if such jurisdiction exists on the basis of provisions of Article 46122 and Articles 50123 to 52124 of this Law or if the damage has occurred in the territory of the [B&H/Serbia].125

This provision in the PIL Act 1982 initiated large theoretical and practical debate and provided for some ambiguities.126 The first question was whether Article 54 (jurisdiction based on obligations created during the presence of the defendant in these countries) stretched to non-contractual obligations. The notion of the theory was that if the ‘obligation’ was created in the territory this provision applied to non-contractual obligations too.127 Another aspect that raised theoretical and practical debate128 was the interpretation of what consisted of the place ‘where the damage has occurred’.129 According to some authors, the place where the damage occurred should be interpreted more broadly in order to cover the place of act or omission.130 e. Trusts The provisions in Article 5(1)(k) of the HCCH 2019 Judgments Convention apply towards judgments that refer to trusts. The SEE region countries do not incorporate the legal concept of ‘trust’ in their national legal systems. Therefore, there are no special conflict of laws rules and international jurisdiction rules relating to this subject matter in their national PIL Acts.

121 See Art 53 of the B&H/Serbian PIL Acts. 122 General jurisdiction based on the domicile or the seat of the defendant. 123 Provision on defendant’s consent. 124 Provision on jurisdiction over nationals who live abroad on official duty. 125 Emphasis added. 126 For more on this provisions, see Qerimi, Country Report – Kosovo (n 20) 104–06. 127 H Sikirić, ‘Određivanje međunarodne nadležnosti Uredbe Vijeća (EZ) br.44/2001 od 22. prosinca 2000. o sudskoj nadležnosti i priznanju i ovrsi odluka u građanskim i trgovačkim predmetima i hrvatski Zakon o međunarodnom privatnom pravu – sličnosti i razlike’ in V Tomljenović and I Kunda (eds), Uredba Bruxelles I: izazovi hrvatskom pravosuđu (Faculty of Law Rijeka 2012) 60. 128 The Commercial Court of Appeals in Serbia has decided on the jurisdiction of the local courts in cases where the harm was caused on the territory of Serbia, despite the action that gave rise to it being outside its territory. The Court ruled that the Serbian courts had jurisdiction over the foreign defendant, based on Art 53, for the harm that was caused to a local entity through reduction of funds in his bank account as a result of wrongful invoicing issued through abuse of authority from the respondent (Decision of the Commercial Court of Appeal, Pž 715/2013 of 30 January 2013 – Court Practice of Commercial Courts – Bulletin No 4/2013), as cited by Qerimi, Country Report – Kosovo (n 20) 105. 129 Dika, Knežević and Stojanović (n 102) 196–97. 130 ibid.

SEE Countries (EU Candidates)  229 f. Counterclaims Article 5(1)(l) of the HCCH 2019 Judgments Convention provides for a jurisdictional filter regarding counterclaims.131 The Macedonian PIL Act, Kosovo PIL Act and the Montenegrin PIL Act contain a specific provision regarding counterclaims, establishing the direct jurisdiction of the courts of North Macedonia, Kosovo or Montenegro for counterclaims if the request for the counterclaim is in correlation with the claim.132 These provisions are broad, and in comparison to Article 5(1)(l) of the Convention, are less detailed; however, decisions based on this jurisdictional criterion could pass the Convention’s jurisdictional filter regarding counterclaims. The B&H/Serbian PIL Acts contain no specific provisions on jurisdiction bases on counterclaim. Serbia in its Serbian Law on Contentious Procedure provides that the Serbian court which has international jurisdiction to rule on the claim can, in accordance with the provisions on local jurisdiction of Article 198 of the LCA which can be analogously applied to international jurisdiction, rule on the counterclaim which is in correlation with the claim.133 Such an approach is in line with the jurisdiction filter of Article (5)(1)(l) of the HCCH 2019 Judgments Convention.134 g.  Consumer and Employment Contracts The HCCH 2019 Judgments Convention contains specific provisions that refer to consumer and employment contracts.135 The situation in the SEE region countries in regard to special jurisdiction for consumer and employment contracts is conflicting. From these countries, only Kosovo, Montenegro, North Macedonia and Turkey have special rules for the determination of the special jurisdiction for consumer and employment contracts. Albania, in its PIL Act provides for a conflict of laws rule for protected contracts such as employment, consumer or insurance contracts, but it does not contain special jurisdiction rules.136 Kosovo, Montenegro and North Macedonia in their national PIL Acts contain almost identical provisions on jurisdiction in consumer and employment contracts.137 The provisions regarding consumer contracts in Kosovo, North Macedonia and Montenegro are modelled on the Brussels Ibis Regulation provisions.138 This is especially important in regard to the Convention, as in most cases jurisdiction over consumer judgments where the consumer is the person against whom recognition is sought would be established according to the domicile of the consumer. Bearing in mind the limited possibilities that are left after the implementation of the restrictions and limitations provided in Article 5(2) of the HCCH 2019 Judgments Convention,139 the only foreseeable outcome would 131 For more on this jurisdictional filter, see Pietro Franzina ch 3, section IV.C, in this volume. 132 Art 113 of the Macedonian PIL Act; Art 114 of the Kosovo PIL Act; and Art 108 of the Montenegrin PIL Act. 133 Stanivuković and Živković (n 102) 198. 134 Đorđević, Country Report – Serbia (n 20) 194. 135 For more on these jurisdictional filters see Pietro Franzina, ch 3, section IV.B, in this volume. 136 See, eg, Art 48 (individual employment contract); Art 50 (contract of carriage); or Art 52 (consumer contracts) of the Albanian PIL Act. 137 Arts 147 and 148 of the Kosovo PIL Act; Arts 146 and 147 of the Macedonian PIL; and Arts 124 and 125 of the Montenegrin PIL Act. 138 I Rumenov, ‘Europeanisation of the Macedonian Private International Law – Legal Evolution of a National Private International Law Act’ (2020) 4 EU and Comparative Law Issues and Challenges (ECILC) 299, 319. 139 I Rumenov, ‘The indirect jurisdiction of the HCCH 2019 Convention on recognition and enforcement of foreign judgments in civil or commercial matters – Is the “heart” of the Convention in the right place?’ (2021) 8 SEEL Law Journal 9, 36; Bonomi and Mariottini (n 25) 558; Weller (n 23) 305. See also, Pietro Franzina ch 3, sections IV.B and IV.C, in this volume.

230  Ilija Rumenov be the jurisdictional filter in Article 5(1)(a) which is the habitual residence of the consumer. Such a position is not without problems for North Macedonia, bearing in mind the problem of determining domicile by the courts of North Macedonia and habitual residence.140 In some situations, this would eventually lead to judgments on consumer contracts not being recognised according to the Convention, where the court in North Macedonia rightfully seised its jurisdiction on the basis of the domicile of the defendant, but the defendant is habitually resident elsewhere, thus making the Convention inapplicable to consumer contracts in such situations. This could be mitigated by two rules: first by the possibility in Article 146 (3) of the Macedonian PIL Act that allows exception to exclusive jurisdiction by allowing the parties to consent to the jurisdiction of the courts of North Macedonia under the condition that it must be given after the dispute has arisen. However, the consent must be provided expressly during the course of the proceedings before the court, in order to pass the limitation of the jurisdictional filter in Article 5(2) that refers to Article 5(1)(e). This scenario would be of use to a very small number of judgments since it prerequires very specific acts by the parties. The second possibility provided in Article 15 of the Convention, seems to be more realistic, and in a situation where a judgment is rendered against a consumer with habitual residence outside North Macedonia, these judgments will be recognised according to the national rules of the court of recognition. The same rationale goes for individual employment contracts since Article 147 of the Macedonian PIL Act (Article 148 of the Kosovo PIL Act and Article 125 of the Montenegrin PIL Act) provides for the same exclusive jurisdiction based on the domicile of the employee as a jurisdictional criterion. The provisions for special jurisdiction regarding consumer and employment contracts in the Turkish PIL Act are very convenient for the 2019 Convention. Article 44 of the Turkish PIL Act provides several jurisdictional criteria based on which Turkish courts could assume jurisdiction in regard to individual employment contracts: the place where the employee habitually carries out his work; or when the employee files the claim – domicile of the employer or the domicile or habitual residence of the employee. This situation provides that if a decision is brought for recognition and enforcement against an employee and in the proceedings in Turkey the employee has domicile or habitual residence in Turkey (and they, as an employee, initiated the proceedings in Turkey), then these decisions will pass the filter provided in Article 5(1)(a). Regarding consumer contracts, Article 45 of the Turkish PIL Act gives a certain pathway on how the jurisdiction of the Turkish courts regarding consumer contracts could be determined: first, it provides for exclusive jurisdiction in the cases against the consumer if the consumer has habitual residence in Turkey.141 Second, the consumer could file the claim at the Turkish court if the domicile or habitual residence of the consumer is located in Turkey, or the place of business, domicile or habitual residence of the seller is located in Turkey.142 Such provision is particularly in line with Article 5(2) of the Convention, if it is seen together with Article 5(1)(a), because if the consumer has lost the case in Turkey the jurisdiction would be based on their habitual residence in Turkey (because of the exclusive jurisdiction). In contrast, there are no comparable grounds of jurisdiction in the other countries of the SEE that still apply the provisions of the PIL Act 1982.



140 See

above, text to n 34. 45(2) of the Turkish PIL Act. 142 ibid, Art 45(1). 141 Art

SEE Countries (EU Candidates)  231

B.  Conditions for Refusal of Recognition and Enforcement The second threshold of the new HCCH 2019 Judgments Convention is that recognition and enforcement can be refused if the foreign judgment fulfils the conditions laid down in Article 7(1).143

i.  Right of Defence The first condition refers to infringement of the right of defence in the State of origin.144 The Kosovo PIL Act and the Macedonian PIL Act have identical provisions regarding the violation of the right of defence as an obstacle for recognition and enforcement.145 These provisions provide for three scenarios when the courts shall refuse recognition and enforcement of foreign judgments upon objection by the party with respect to the violation of the right of defence: (1) due to irregularities in the proceedings, the party (in the main proceedings) could not use its means of defence; or (2) the summons, the document or the ruling instituting the proceedings were not personally served upon him, or if such personal service was not even tried, except when that party pleaded on the merits of the plaintiff ’s claim in the procedure of first instance: or (3) the party was not given sufficient time to arrange its defence from the moment of service of the document instituting the proceeding until the moment when the hearing was scheduled. In comparison to Article 7(1)(a) of the Convention, the wording of both of the rules is different; however several overlapping issues can be detected. First, both of these rules refer to the question of service of documents. The Kosovo/North Macedonian rule starts from a more general position and then describes a more specific situation: from existing irregularities in the proceedings which as a consequence had prevented the use of the parties’ means of defence, to the more specific aspect of service of documents. The Convention rule refers only to the question of service of documents. However, this rule must be read in conjunction with Article 7(1)(c) which refers to the public policy defence, but with specific reference to the ‘fundamental principles of procedural fairness’ which at a general level cover issues such as the right of the party to be heard, equity of arms, etc.146 Second, the Kosovo/Macedonian PIL Acts and the Convention do not provide for the modality or the standard for the service of documents. The Explanatory Report provides for several modalities, such as service to the employee of the defendant or public notice.147 However, the right to be heard is not violated if the requested court is satisfied that all investigations required by the principle of diligence and good faith have been undertaken to trace the defendant without success.148 Third, in both rules the behaviour of the defendant in the State of origin dictates its outcome, namely if the defendant entered an appearance and presented his case in the court of origin without contesting notification, the defence based on improper notification will not be available in the requested State.149 The third scenario refers to a specific situation of the violation of the right of defence where the breach of the procedural rights of the



143 For more on the grounds for refusal in the Convention see, Marcos Dotta Salgueiro, ch 4, section III.B, in this volume. 144 Art

7(1)(a) of the Convention. See, Marcos Dotta Salgueiro, ch 4, section III.B, in this volume. 166 of the Kosovo PIL Act and Art 164 of the Macedonian PIL Act. 146 Garcimartín and Saumier (n 22) para 256; See also, Marcos Dotta Salgueiro, ch 4, section III.B, in this volume. 147 Garcimartín and Saumier (n 22) para 251. 148 ibid. 149 ibid, para 250. 145 Art

232  Ilija Rumenov defendant were made by leaving insufficient time to prepare the defence, although service was provided. The relevant point in time in the proceedings that is important for application of this condition is the moment from the service, until the time when the hearing was scheduled. This new addition is important in regard to the Convention because it will address the scenario in Article 7(1)(a)(ii) which provides that not only the lack of service constitutes violation of the right of defence, but also service of documents to the defendant in a manner that is incompatible with fundamental principles of the requested State, concerning service of documents that amounts to infringement of the right of defence. The SEE region countries that still apply the provisions based on the PIL Act 1982 contain provisions regarding violation of the right of defence.150 Similarly to Article 164 of the Macedonian PIL Act, this provision starts from the more general construct of the violation of the right of defence by providing that the B&H/Serbian court shall not recognise and enforce a foreign judicial decision if it determines, upon the objection of the person against whom that decision was rendered, that that person could not take part in the proceedings before a foreign court because of procedural irregularities.151 From this general aspect, the B&H/Serbian PIL Acts provide for more detailed consideration of the infringement of the rights of defence of the party by stating that: It shall be considered that such irregularities particularly exist if any summons, writ or decision by which the proceedings were initiated had not been served upon the person against whom the decision was rendered or no personal service had been attempted, unless that person had in any way entered into the proceedings.152

The Montenegrin PIL Act in Article 143 contains a very similar provision to Article 88 of the PIL Act 1982; however it provided for additional violation of the right of defence, and that is insufficient time for preparation of the defence.153 Such a position of Article 88 of the B&H/Serbian PIL Acts provides for two aspects. First, from the wording of the Kosovo PIL Act, Montenegrin PIL Act and the Macedonian PIL Act it is evident that these two provisions were highly influenced by the provisions of the PIL Act 1982. The wording in the Kosovo, Montenegrin and Macedonian PIL Acts follow the wording from the PIL Act 1982 and only defer in the ‘sufficient time to prepare the defence’ violation, which is not explicitly provided in the PIL Act 1982. Second, in the context of the HCCH 2019 Judgments Convention, the provision in Article 7(1)(a) contains more details than Article 88 of the B&H/ Serbian PIL Acts. The Convention provides for two scenarios: one, which refers to the case where the document which instituted the proceedings or an equivalent document, including a statement of the essential elements of the claim was not notified to the defendant,154 and a second scenario, where this document was notified to the defendant.155 The B&H/Serbian PIL Acts contain specific provisions only in regard to the first scenario. The second scenario is not specifically provided but the courts could subsume it under the general construct of the violation of the right of defence in Article 88(1) of the B&H/Serbian PIL Acts.



150 See

Art 88 of the B&H/Serbian PIL Acts.

151 ibid. 152 ibid,

Art 88(2). more on this condition, see Kostić-Mandić, Country Report – Montenegro (n 20) 129–30. 154 Art 7 (1)(a)(i) of the Convention. 155 ibid, Art 7 (1)(a)(ii). 153 For

SEE Countries (EU Candidates)  233 The Albanian Civil Procedure Code (CvPC) regulates the procedure for recognition and enforcement of foreign decisions. Article 343(b) of the CvPC provides that the foreign judicial decision would not be recognised and enforced if the defendant in absentia was not duly notified about the claim on a regular basis in order to give him the possibility to be defended. Moreover, the right of defence must be considered together with Article 343(d) of the CvPC as part of procedural public policy.156 The Turkish PIL Act in Article 54(c) also provides for this condition for recognition and enforcement of a foreign judgment and in essence contains some of the elements of Article 7(1)(a) of the Convention.

ii.  Fraud and Public Policy The second condition in the HCCH 2019 Judgments Convention refers to fraud as a ground for refusal of recognition and enforcement.157 This condition can be seen together with the third condition of the new Convention, which refers to the public policy defence.158 Public policy has a very broad meaning and its interpretation varies according to national legal systems.159 The Macedonian PIL Act does not contain a definition of public policy, but it states that the foreign judgment would not be recognised if the effect of the recognition of the decision is evidently contrary to the public policy of the Republic of North Macedonia.160 Moreover, the Macedonian PIL Act follows the new tendencies in private international law161 which provide for a higher threshold for application of the ‘public policy’ exemption. Article 163 of the Macedonian PIL Act elevates the threshold higher to the standard ‘evidently contrary to public policy’. Such wording is not only semantically significant, but it also provides for a much more restrictive approach to the use of the ‘public policy’ exemption.162 The wording in the Kosovo PIL Act regarding the ‘public policy’ exemption in the new PIL Act is identical to the Macedonian PIL Act.163 From experience with the previous PIL Act in Kosovo, in regard to the interpretation of the public policy defence, Kosovo provides for a very liberal notion.164 On the other hand, the courts interpret public policy very narrowly and thus it is rarely applied in practice.165 For a judgment to amount to a violation of public policy, it would have to entail ‘an extraordinary and clear incompatibility with fundamental principles that are valid in the Republic of Kosovo’.166

156 Gugu Bushati, Country Report – Albania (n 20) 39; E Metalla, ‘Recognition and Enforcement of Foreign Judgments and Arbitral Awards in Albania’ (2016) 4(2) Global Journal of Politics and Law Research 55, 59–60. 157 Art 7(1)(b) of the Convention. See, Marcos Dotta Salgueiro, ch 4, section III.B, in this volume. 158 Art 7(1)(c) of the Convention. See, Marcos Dotta Salgueiro, ch 4, section III.B, in this volume. 159 J Kramberger Škerl, ‘European Public Policy (With an Emphasis on Exequatur Proceedings)’ (2011) 7 Journal of Private International Law 461, 462. 160 See Art 163 of the Macedonian PIL Act. 161 B Hess and T Pfeiffer, ‘Study on the Interpretation of the Public Policy Exception as referred to in EU Instruments of Private International and Procedural Law, prepared for the European Parliament’s Committee on Legal Affairs’, available at: www.europarl.europa.eu/thinktank/en/document.html?reference=IPOLJURI_ET%282011%29453189]; K Siehr ‘General problems of private international law in modern codifications – de lege lata and – de lege europea ferenda’ (2005) 7 Yearbook of Private International Law 17, 54; Kramberger Škerl (n 159) 466–77. 162 Hess and Pfeiffer (n 161) 13. 163 Art 165 of the Kosovo PIL Act. 164 In Prishtina Court Decision No CN No 248/2015 of 25 May 2015, the Court, although it did not specifically mention the same-sex nature of the partnership, recognised a decision of a German court for dissolution of a civil partnership between a same-sex couple, as cited by Qerimi, Country Report – Kosovo (n 20) 110. 165 ibid. 166 I Morina and S Nikci, ‘Komentar’ 524, as cited by Qerimi, Country Report – Kosovo (n 20) 110.

234  Ilija Rumenov The Turkish PIL Act contains a simple rule regarding the public policy criterion.167 It just insists that the recognition and enforcement should not be contrary to Turkish public policy.168 However, the Turkish judiciary has provided extensive interpretation of the public policy interpretation covering several issues such as fraud, res judicata and punitive damages.169 The Montenegrin PIL Act has provided for a similar rule to the Macedonian PIL Act where the requirement is that the foreign judicial decision will not be recognised in Montenegro if the effects of its recognition would be evidently contrary to Montenegrin public policy.170 It is considered that this rule’s purpose is to establish substantive and procedural public policy in connection with effects within the forum state.171 The public policy exception includes a defence based on procedural and substantive fraud.172 Public policy as a ground for refusal is regulated under Article 394(dh) of the CvPC (basic principles of Albanian legislation). Albanian case law provides a broad definition of public policy by including issues of substantive and procedural law. According to Albanian jurisprudence, substantive public policy grounds give no importance to the contents of foreign law, but to eventual effects that arise from the recognition of the foreign judgments and their compatibility with the basic principles (provided in substantive norms) of the Albanian law. Procedural public policy grounds are covered by paragraph (b) (default judgments) and paragraph (d) (judgments that become final in violation of foreign national legislation).173 The other SEE region countries still adhere to the wording of the PIL Act 1982 in determining the public policy defence. However, its interpretation is considered for every country individually. Article 91 of the B&H/Serbian PIL Acts provides that foreign judgments opposing the constitutionally determined bases of the country will not be recognised. In Serbia also the public policy defence is interpreted very narrowly.174 Only violations which target fundamental procedural and substantive principles of the Serbian legal system are to be taken into account.175 Comparing the Convention and the SEE PIL Acts in relation to public order and fraud shows that the national definitions are much simpler and it is left for the court to assess the effects the recognition of foreign judgments has on the domestic legal order. The violation of public policy as a ground for non-recognition is more precisely regulated in Article 7(1)(c) of Convention and tends to provide for both flexibility and legal certainty.176 However, from the restrictive approach of the region in the context of the public policy defence it can be said that these provisions are

167 Art 54(c) of the Turkish PIL Act. 168 The Court of Cassation in a decision (Yargıtay HGK, 1/1, 20 February 2012) tries to provide a framework for the public policy concept. Accordingly, the public policy concept includes basic values of Turkish law, a general understanding of Turkish morals and ethics, a basic understanding of the justice and general politics which form the basis of Turkish laws, fundamental rights and freedoms provided in the Constitution, rules based on common international principles and principle of good faith in private law, legal principles that define moral principles and understanding of justice acknowledged by all civilised societies, civilisation level of the public, the political and economic regime and human rights and freedoms. A foreign court decision whose effects or consequences are manifestly incompatible with Turkish public policy cannot be recognised or enforced in Turkey. As cited by Süral Efeçınar (n 20) 794. 169 ibid. 170 Art 147 of the Montenegrin PIL Act. 171 M Kostić Mandić, ‘Recognition and enforcement of foreign court decisions in the new private international law of Montenegro’ Collected Papers, Association of Montenegro Lawyers, nos 1-2/2015, 10. 172 Kostić-Mandić, Country Report – Montenegro (n 20) 134. 173 Gugu Bushati, Country Report – Albania (n 20) 39. 174 Đorđević, Country Report – Serbia (n 20) 198. 175 See T Varadi et al, ‘Međunaodno privatno pravo, deseto izdanje, JP “Službeni Glasnik”’ (Beograd 2008) 553–55; Dika, Knežević and Stojanović (n 102) 300–04; Stanivuković and Živković (n 102) 456–58. 176 M Jovanovic, ‘Thou Shall (Not) Pass – Grounds for Refusal of Recognition and Enforcement under the 2019 Hague Judgments Convention’ (2019/20) 21 Yearbook of Private International Law 309, 323.

SEE Countries (EU Candidates)  235 compatible. Second, none of these PIL Acts provide for separate provisions in relation to fraud; however this condition is usually characterised as a violation of public policy. The fact that the Convention specifically provides for this exemption will influence national courts to be more observant to such violations when they recognise and enforce foreign judgments, no matter how they qualify that infringement: as contrary to public policy or as fraud.177

iii.  Infringement of Choice of Court Agreements The fourth condition refers to a judgment rendered by a court that assumed the jurisdiction although there was a choice of court agreement, which designated a court other than the court of origin.178 This condition tends to uphold the prorogation of the jurisdiction and to respect the party autonomy. Article 7(1)(d) of the HCCH 2019 Judgments Convention needs to be seen together with the indirect jurisdictional bases given in Article 5 and it presents a last defence against a judgment that was rendered by a court that determined the jurisdiction on other bases, while a choice of court agreement was present in the case.179 The Macedonian PIL Act has not provided for a specific rule regarding breach of the choice of court agreement as a condition for recognition and enforcement. Instead, the Macedonian PIL Act has taken an indirect approach by providing choice of court agreements an exclusive jurisdictional character (if not otherwise determined by the parties)180 and that foreign judgments will not be recognised if the North Macedonian court has exclusive jurisdiction.181 The effect of this approach is that foreign judgments are not recognised if they violate the allowed and rightful parties’ choice of court agreement of the courts of the Republic of North Macedonia.182 The Kosovo PIL Act and the Montenegrin PIL Act contain similar rules.183 A similar counterpart is nonexistent in the national PIL Acts of B&H and Serbia and such a condition cannot be subsumed under any other ground regulated by these Acts.184 Turkey also does not contain a specific provision; however there are opposing views in Turkish doctrine as to whether omission of a valid choice of court agreement or an arbitration agreement would constitute exorbitant jurisdiction of the court of origin.185

iv.  Inconsistent Judgments and Pending Proceedings in the Requested State The fifth and sixth conditions refer to two similar situations that resolve the problems of inconsistent (irreconcilable) judgments and pending proceedings in the requested State.186

177 ibid, 322. 178 Art 7(1)(d). See, Marcos Dotta Salgueiro, ch 4, section III.B, in this volume. 179 Garcimartín and Saumier (n 22) para 267; see Beaumont, ch 6, section III.A, in this volume. 180 See Art 122(2) of the Macedonian PIL Act. 181 ibid, Art 160. 182 Moreover, the Kosovo PIL Act, Montenegrin PIL Act and the Macedonian PIL Act contain similar provisions regarding exorbitant jurisdiction, by implementing the ‘mirror principle’, according to which foreign judicial decisions would not be recognised in Kosovo/Montenegro/North Macedonia, if the jurisdiction was determined according to circumstances which are not provided for determination of the jurisdictions for complementary cross-border issues in Kosovo/ Montenegro/North Macedonia (Art 162 of the Kosovo PIL Act; Art 145 of the Montenegrin PIL Act; and Art 161 of the Macedonian PIL Act). 183 Art 161 of the Kosovo PIL Act and Art 144 of the Montenegrin PIL Act. 184 Đorđević, Country Report – Serbia (n 20) 199. 185 Süral Efeçınar (n 20) 794. 186 Art 7(1)(e) and (f) of the Convention. See, Marcos Dotta Salgueiro, ch 4, section III.B, in this volume.

236  Ilija Rumenov Article 162 of the Macedonian PIL Act refers to the question of inconsistent (irreconcilable) judgments. These rules are modelled to protect the national legal system against judgments rendered in other legal systems on the same subject matter and between the same parties. In essence, Article 162 of the Macedonian PIL Act provides that a foreign judicial decision shall not be recognised if the court or another authority in North Macedonia rendered a final decision on the same matter or if another foreign judicial decision rendered on the same matter and between the same parties was recognised in North Macedonia.187 On the other hand, the court shall stay recognition of a foreign judicial decision in cases when, before a North Macedonian court, proceedings in the same cause of action and between the same parties, which were instituted earlier, are still pending until the judgment in these proceedings become final.188 The determination of the existence of this legal obstacle is ex officio. This Article refers to two different procedural situations. The first paragraph is referring to cases where in North Macedonia the courts have already rendered a final judicial decision regarding the same matter, or a foreign judicial decision has already been recognised in North Macedonia when a request for recognition is made. The second paragraph of the same Article is referring to cases where North Macedonian courts have seised jurisdiction and proceedings are ongoing when the request for recognition is made. A similar approach is taken in the Kosovo PIL Act and the Montenegrin PIL Act.189 B&H and Serbia contain almost identical provisions to the above-mentioned countries.190 The Albanian provisions that resolve the issue of irreconcilable judgments are a bit more detailed. In the context of res judicata situations, Article 394 (c) of the CvPC provides that the foreign judgment will not be recognised in Albania if between the same parties, for the same object and for the same cause, a different decision has been given by the Albanian courts. These triple identification issues in the Albanian PIL Act, need to be considered more liberally, because they could disrupt the aim of the provision.191 The second type of situation regarding parallel proceedings is provided in Article 394(d) of the CvPC. According to this provision, the foreign judgment will not be recognised in Albania if a lawsuit, which has been filed before the foreign judgment has become irrevocable, is being adjudicated by an Albanian court. This provision needs to be seen in conjunction with Article 38 of the CvPC that concerns the lis pendens rule.192 The Albanian court shall dismiss the proceedings when the foreign court renders a final judgment which can be recognised and/or enforced in the Republic of Albania.193 The situation in Turkish law regarding inconsistency of judgments and lis pendens is not in line with the provisions in the HCCH 2019 Judgments Convention covering these issues. In the Turkish PIL Act there are no similar direct provisions that apply to these procedural problems.194

187 Art 162(1) of the Macedonian PIL Act. 188 ibid, Art 162(2). 189 Art 163 of the Kosovo PIL Act and Art 146 of the Montenegrin PIL Act. 190 See Art 90 of the B&H/Serbian PIL Acts. The only difference between these PIL Acts and the Macedonian PIL Act is that in the Macedonian PIL Act in the scenario where there is inconsistency between the prior recognised decision in North Macedonia and the new judgment that needs to be recognised, is that these judgments need to relate to the same parties and same cause of action. 191 F Kola Tafaj and S Çinari, ‘Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters in Albania’ in CE Tuo, L Carpaneto and S Dominelli (eds), Brussels I bis Regulation and Special Rules: Opportunities to Enhance Judicial Cooperation (Arcane 2021) 372. 192 A Gugu Bushati, ‘Impact of the Brussels Ibis Regulation on Recognition and Enforcement of Foreign Judgments in Albania’ in CE Tuo, L Carpaneto and S Dominelli (eds), Brussels I bis Regulation and Special Rules: Opportunities to Enhance Judicial Cooperation (Arcane 2021) 391; Kola Tafaj and Çinari (n 191 208) 374. 193 Art 38(3) of the CvPC. 194 G Bayraktaroğlu Özçelik, ‘International Lis Pendens as a Contemporary Problem of Turkish International Civil Procedure’ (2016/17) 18 Yearbook of Private International Law 395.

SEE Countries (EU Candidates)  237 The practice of the Turkish courts has subsumed some of these problems under procedural public policy when there is a foreign judgment that is inconsistent with a prior judgment rendered by a Turkish court in a legal dispute between the same parties on the same cause of action.195 In regard to the lis pendens cases, the situation in Turkey is even more worrying, because there is no obstacle to initiate a claim in Turkish courts between the same parties on the same subject matter while there is a prior request for recognition and enforcement lodged before the Turkish courts. In such a case, both actions will continue and when one of them becomes final, it will deter the other due to the existence of a res judicata.196 This very unpopular position of the Turkish PIL Act is mitigated by the practice which provides a certain interpretation of Articles 41 and 47 of the Turkish PIL Act by which lis pendens is possible in regard to status relations and choice of court agreements.197

III.  Concluding Remarks The SEE region is in a perpetual quest to ease the procedures for recognition and enforcement of foreign judgments and to establish a common platform based on which foreign judicial decisions can circulate. Whether the reason to achieve this goal is the common legal and economic system of SFRY that functioned in the SEE region for 50 years, or the future prospect of integration in the EU and the prolonged membership of the SEE region, is irrelevant. It is evident that the region, after years of uncertainty, yearns towards enhanced cooperation between the countries and tends to connect. The economic cooperation of the SEE region, the large number of bilateral agreements, the Sarajevo Convention – all of these facts sketch the desire of the SEE countries to have legal certainty and predictability in their PIL provisions in order for their economies to achieve their full potential. With the HCCH 2019 Judgments Convention on the table, the SEE region is now faced with an opportunity to achieve this quest and at the same time expand its need for legal certainty and predictability on a universal level. The Convention, seen as a platform, provides for solutions that are flexible enough in order for different legal regimes to accept them, while being meticulous, so that legal certainty and predictability are preserved. This balance is hardly achievable at a regional level, let alone at a universal level. The opportunity is right there ‘on the table’ and now the region is faced with two questions: whether their national rules correspond with the provisions of the HCCH 2019 Judgments Convention and whether their interests can be pursued through this HCCH instrument. The answer to the first question was given in this Chapter. The SEE region in terms of PIL is remarkably dynamic. Many of the SEE countries reformed their national PIL Acts and adopted their national provisions to the EU acquis so the discrepancies that apply towards the EU Member States regarding the HCCH 2019 Judgments Convention will be also applicable towards these SEE countries. The other SEE countries that still apply the provision of the PIL Act 1982 are in a position to construct their national PIL guided by another important innovation from the HCCH that contains interesting solutions in regard to jurisdictional criteria and conditions for recognition. In the meantime, their current provisions contain sufficient grounds that still can help their decisions to have a much wider reach. So, the answer to the first question is affirmative and now leads us to the second question – whether there is sufficient interest in the SEE region? From



195 Süral 196 ibid,

Efeçınar (n 20) 795. 800. Özçelik (n 194) 421–22.

197 Bayraktaroğlu

238  Ilija Rumenov economic and legal perspective, the acceptance of the HCCH 2019 Judgments Convention in the SEE region will represent an addition to the pallet of opportunities that are given to the most economically active persons in order to resolve their disputes. International commercial arbitration, investment arbitration and international litigation are bases upon which legal certainty and predictability is constructed in complex cross border disputes. This newest addition will affect persons that favour litigation, which is the traditional venue for resolving disputes in the SEE region. If the Convention achieves its full potential, it will attain several goals in the region: it will draw nearer the regional economies by providing a common legal platform for circulation of judgments and, at the same time, expanding the legal certainty in countries with whom the region has interest to cooperate. The correlation of these goals with the political relations between the SEE countries can be mitigated by Article 29 of the Convention.198 In that light, the possible outcome for the SEE region depends on whether the countries want to spend another 30 years ‘reinventing the wheel’ or if they want to progress their considerations on issues that will expand their economies.



198 For

more on the importance of Art 29, see João Ribeiro-Bidaoui and Cristina M Mariottini, ch 5 in this volume.

11 Gains and Opportunities for the MERCOSUR Region VERÓNICA RUIZ ABOU-NIGM*

I. Introduction The adoption of the HCCH 2019 Judgments Convention represents a milestone for the facilitation of cross-border litigation. The global positioning of the Hague Conference on Private International Law (HCCH) has enabled the adoption of a recognition and enforcement framework that promotes the circulation of judgments across jurisdictions beyond different regional paradigms. It provides reasonable, flexible and inclusive eligibility criteria for judgments to circulate under the scope of the Convention. In the early days of the ‘post-adoption’ efforts to materialise this outstanding achievement by means of ratifications of this Convention by the Member States of the HCCH, leadership is paramount, and this is where regions and countries with a long history of international judicial cooperation, such as MERCOSUR countries, can continue to influence the pathway to success. Uruguay did so in being the first country to sign the Convention on the day of its adoption. The scope of enquiry of the present contribution is limited to the analysis of two issues: (a) one of the essential eligibility requirements for judgments to circulate internationally, ie, one of the ‘positive conditions’1 for recognition under the Convention: the international jurisdiction of the court of the state of origin of the judgment;2 and (b) a specific ‘negative condition’: the public policy exception as a ground for refusal.3 These rather circumscribed yet core and interrelated matters are of particular importance in relation to the impact of the new Convention in the legal landscape of MERCOSUR. Latin American countries more broadly, and MERCOSUR Member States in particular,4 have a long-standing tradition of international judicial cooperation within the region, as well as openness to the recognition and enforcement of foreign judgments from

* The author took part as a representative of the American Association of Private International Law (ASADIP) in the meetings of the Special Commission on the Judgments Project. The views expressed here are entirely personal. The author is grateful to Professor MB Noodt Taquela for her comments to previous iterations of this chapter. The usual disclaimer applies. 1 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 111. 2 See further Pietro Franzina, ch 3 in this volume. 3 See further Marcos Dotta Salgueiro, ch 4 in this volume. 4 See, inter alia, MB Noodt Taquela, ‘Applying the most favourable treaty or domestic rules to facilitate private international law co-operation’ (2016) 377 Recueil des cours 121.

240  Verónica Ruiz Abou-Nigm outside the bloc and the region.5 However, as demonstrated below, some restrictive provisions, particularly in relation to the assessment of indirect jurisdiction, coupled with some anomalies in practice in some countries in relation to the use of the public policy exception in this context, result in less ‘circulation’ in practice than desirable. One of the cornerstones of any normative system in the field of recognition and enforcement of foreign judgments is the assessment of the jurisdiction of the court of origin. In the multi-layered recognition and enforcement landscape of MERCOSUR countries this is done in one of three ways: (a) according to the rules of (direct) jurisdiction of the court of origin itself; (b) according to the rules of (direct) jurisdiction of the requested court (bilaterilización,6 ‘mirror principle’); or (c) according to specific agreed rules of indirect jurisdiction (as provided for in the new Convention, but also in the 1984 Inter-American Convention). The more inclusive approach, ie, the most facilitative of recognition, is that of Uruguay, providing for (a) in its domestic rules.7 This criterion was adopted on the understanding that it was the most favourable to the international circulation of judgments.8 Contrarily, Argentinian domestic law, as well as the regional and multilateral frameworks applicable in the region – except for the 1984 InterAmerican Convention9 – adopt the much more restrictive position of (b). This overly restrictive approach has been severely criticised in Latin American private international law literature.10 It has been considered detrimental to the right of access to justice.11 Yet, the ‘mirror principle’ is the approach adopted in the MERCOSUR regional framework.12 The complex legal landscape examined below has created drawbacks in MERCOSUR countries. In relation to judgments from outside the bloc, and in relation to the recognition and enforcement of judgments emanating from MERCOSUR countries elsewhere, the divergences

5 N de Araujo et al, ‘Private International Law Chronicles’ (2019) 16 Brazilian Journal of International Law 19, 23. 6 This is the term used in Spanish in private international law parlance. See, inter alia, F Garcimartín, Lecciones: Reconocimiento y Ejecución de Sentencias Extranjeras en España (2015): ‘la idea [es] bilateralizar nuestros foros de competencia directa’. ‘Bilateralización’ is also the term used in relation to MERCOSUR (see DP Fernández Arroyo (ed), Derecho Internacional Privado de los Estados del MERCOSUR (Zavalia 2003) 428. 7 Código General del Proceso (General Procedural Code) (CGP), Act No 15.982, 18 October 1988, Art 537 ff. This approach – known in the region as ‘the lex causae approach’ – originated from a proposal of Opertti Badán, who together with Tellechea Bergman were in charge of drafting the relevant provision of the General Procedural Code (Art 539.4, CGP); see E Tellechea Bergman, ‘International Jurisdiction as a Requirement for the Recognition of Foreign Judgments: Need for a New Regulation in the Latin American Context’ (2016) 49 Boletin Mexicano de Derecho Comparado 146, fn 25. Art 539.4. CGP provides one exception to the lex causae approach in cases of exclusive jurisdiction of the Uruguayan courts. [‘Que el tribunal sentenciante tenga jurisdicción en la esfera internacional para conocer en el asunto, de acuerdo con su derecho, excepto que la materia fuera de jurisdicción exclusiva de los tribunales patrios’]. 8 See D Opertti Badán, ‘Algunas reflexiones sobre jurisdicción internacional y jurisdicción exclusiva’ in JAM Oyarzábal (ed), Derecho procesal transnacional. Homenaje al Prof Dr Gualberto Lucas Sosa (Ábaco 2012) 178. 9 Convención Interamericana sobre Competencia en la Esfera Internacional para la Eficacia Extraterritorial de las Sentencias Extranjeras, La Paz, Bolivia, 24 May 1984 (OAS Treaties B-50). See further D Opertti Badán, ‘La Tercera Conferencia Especializada Interamericana sobre Derecho Internacional Privado-CIDIP III’ (1984) 2 Revista Uruguaya de Derecho Procesal, Montevideo 184; G Parra Aranguren, ‘La tercera conferencia interamericana sobre derecho Internacional privado (CIDIP III), La Paz 1984’ (1984–85) 33–34 Revista de la Facultad de Derecho de la Universidad Católica Andrés Bello, Caracas 129. 10 See, inter alia, Q Alfonsín, ‘La ejecución extranacional de las sentencias en materia civil y comercialI’ (1951) 26 Revista de Derecho Público y Privado, Montevideo 266; Opertti Badán, ‘La Tercera Conferencia Especializada Interamericana sobre Derecho Internacional Privado-CIDIP III’ (n 9); Tellechea Bergman (n 7). 11 C Madrid Martínez and JL Ochoa Muñoz, ‘Problemas de acceso transnacional a la justicia en el Derecho Internacional Privado Perspectiva Latinoamericana’ (2015) XLI OAS, Curso de Derecho Internacional 281. 12 In intra-MERCOSUR scenarios the consequences of this approach are attenuated by regional frameworks of direct jurisdiction rules. According to the law in the Member States the latter prevail over national rules within the region within their respective scope of application, somehow generating a ‘double-sided’ system of direct and indirect jurisdiction, yet not as developed or as ‘quasi-automatic’ as the double-system of the Brussels Ia Regulation in the European Union.

Gains and Opportunities for the MERCOSUR Region  241 between national and regional approaches and the lack of overarching global parameters, endangers an effective access to justice in these countries. The HCCH 2019 Judgments Convention offers a global opportunity to enhance the circulation of judgments within and beyond the MERCOSUR. The interaction between the new Convention – based on its compatibility principle13 – and the existing multi-layered legal landscape in MERCOSUR (including multilateral treaties, regional – MERCOSUR – instruments, bilateral treaties, national rules of the respective countries, and regional principles (soft law)) should result in increased flexibility of the minimum requirements for the ‘circulation-eligibility’ of foreign judgments. In turn, this should progressively nurture trust between legal systems globally, and in the case of MERCOSUR legal systems, enable further recognition of the decisions of their courts and tribunals outside the bloc and the region. The following paragraphs aim to map the most relevant features of the existing legal landscape in MERCOSUR countries and highlight some of the gains and opportunities for the region, with a view to support the HCCH efforts to make this instrument not only a historical milestone, but also a reality of global cooperation.

II.  MERCOSUR Legal Landscape The Southern Common Market (MERCOSUR for its Spanish initials) is a regional integration process, initially established by Argentina, Brazil, Paraguay and Uruguay,14 and subsequently joined by Venezuela15 and Bolivia.16 Since its creation, MERCOSUR’s main objective has been to promote development through the integration of national economies into the international market. It has established multiple agreements with countries or groups of countries, granting them, in some cases, the status of Associated States – this being the situation of some other South American countries, like Chile.17 MERCOSUR has signed trade and cooperation agreements with several countries and organisations on every continent. However, trade agreements and related cooperation agreements rarely include judicial cooperation provisions.18 In the MERCOSUR region, and in Latin America more broadly, recognition and enforcement of foreign judgments as a sub-field has been understood as part of the regional international judicial cooperation paradigm.19 The distinction between direct and indirect jurisdiction is well established. However, as previously mentioned, there are divergent approaches to the provision

13 Art 23(1) HCCH 2019 Judgments Convention. See further, MB Noodt Taquela and V Ruiz Abou-Nigm, ‘The Draft Judgments Convention and its Relationship with other International Instruments’ (2017/18) 19 Yearbook of Private International Law 449. 14 Treaty of Asunción establishing MERCOSUR, signed in Asunción, Paraguay on 26 March 1991. 15 Currently suspended from membership. MERCOSUR Decision of 5 August 2017, Sao Paulo. 16 At the time of writing Bolivia has its accession procedure unfinished. 17 MERCOSUR Decision No 18/04, Puerto Iguazú, 7 July 2004. 18 One example is the EU–MERCOSUR Association Agreement of 28 June 2019 (not yet in force), where its Dispute Resolution title does not cover commercial disputes between private parties. See further M Weller, ‘The HCCH 2019 Judgments Convention: New Trends in Trust Management’ in C Benicke and S Huber (eds), National, International, Transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke (Gieseking 2020). 19 The theme of recognition and enforcement of foreign judgments is usually treated in the region as within two subfields of private international law broadly conceived: (a) international procedural law; and (b) international judicial cooperation. These two dimensions of recognition and enforcement are, of course, intertwined. It may be argued that they represent manifestations of two different underlying approaches: (a) focusing on the relationship between the judgment creditor and the requested State; and (b) focusing on the judicial assistance between courts internationally, for the sake of materialising the rights of the parties.

242  Verónica Ruiz Abou-Nigm of indirect jurisdiction.20 This has resulted in continued efforts to harmonise indirect jurisdiction rules in the region, and it explains the focus of this contribution.

A.  MERCOSUR Instruments The 1992 Las Leñas Protocol on Cooperation and Jurisdictional Assistance in Civil, Commercial and Administrative Matters21 was adopted within MERCOSUR and is in force between Argentina, Brazil, Paraguay and Uruguay.22 It was the first private international law instrument adopted as a regional – MERCOSUR – framework, aiming to harmonise the provisions of various multilateral treaties applicable23 between some of MERCOSUR countries that had created a very inconsistent legal landscape, as different treaties in force were only applicable between some of the Member States of MERCOSUR. Chapter V of this regional treaty provides for the recognition and enforcement of foreign judgments in the intra-regional setting. Article 20 establishes the following requisites as essential for the circulation of judgments within MERCOSUR: (a) formal requirements for the judgment to be considered authentic in the State of origin; (b) translations to the official language of the requested State; (c) international jurisdiction of the issuing court according to the rules of international jurisdiction of the requested State; (d) due process requirements; (e) enforceability or res judicata effect of the judgment in the State where it was rendered; (f) the judgment should not violate manifestly the public policy principles of the requested State.24 Moreover Article 35 provides for a compatibility rule between multilateral frameworks already in force between the Member States.25 The criterion of normative accommodation is that

20 Arguably these divergent approaches reflect different understandings of the purpose and function of these rules. In that sense the ‘mirror principle’, or the ‘lex fori’ approach, as it’s also referred to in the region, is considered to be a ‘territorialist’ approach, protecting the ‘home’ jurisdiction from the ‘invasion’/’usurpation’ of foreign courts (see W Goldschmidt, Derecho Internacional Privado: Derecho de la Tolerancia (Depalma 1992) 496: ‘[la jurisdicción indirecta] protege la propia jurisdicción contra la invasión efectuada por la extranjera. Para que haya tal invasión es preciso que la usurpación de nuestra jurisdicción de parte de la extranjera viole nuestro orden público internacional procesal’). Contrarily, the proponents of the much more inclusive ‘lex causae’ approach understand that the main purpose of indirect jurisdiction rules is to verify that the foreign court was internationally competent to entertain the case according to its own rules, as a ‘basic’ procedural requirement (‘se entiende que el punto de partida para que pueda plantearse el máximo grado de cooperación … es que dicha decisión provenga … de una autoridad específicamente autorizada por la norma applicable’, DP Fernández Arroyo (ed), Derecho Internacional Privado de los Estados del MERCOSUR (Zavalia 2003) 427). 21 Protocol on Judicial Co-operation and Assistance in Civil, Commercial, Labour and Administrative Matters, signed in Las Leñas, Argentina on 27 June 1992. The Las Leñas Protocol is in force in the four original States of MERCOSUR: Argentina, Brazil, Paraguay and Uruguay. 22 In 2002 MERCOSUR negotiated a parallel treaty with Bolivia and Chile on the same lines that is in force since 2009. 23 See below, section II.B. 24 Non-literal translation by the author. Original text in Spanish: ‘Las sentencias y los laudos arbitrales a que se refiere el artículo precedente tendrán eficacia extraterritorial en los Estados Partes si reúnen las siguientes condiciones: (a) que vengan revestidos de las formalidades externas necesarias para que sean considerados auténticos en el Estado de donde proceden; (b) que éstos y los documentos anexos que fueren necesarios, estén debidamente traducidos al idioma oficial del Estado en el que se solicita su reconocimiento y ejecución; (c) que éstos emanen de un órgano jurisdiccional o arbitral competente, según las normas del Estado requerido sobre jurisdicción internacional; (d) que la parte contra la que se pretende ejecutar la decisión haya sido debidamente citada y se haya garantizado el ejercicio de su derecho de defensa; (e) que la decisión tenga fuerza de cosa juzgada y/o ejecutoria en el Estado en el que fue dictada; (f) que no contraríen manifiestamente los principios de orden público del Estado en el que se solicitare el reconocimiento y/o ejecución’. 25 On the importance of compatibility rules, see MB Noodt Taquela, ‘Applying the Most Favourable Treaty or Domestic Rules to Facilitate Private International Law Co-operation’ (2016) 377 Recueil des cours of the Hague Academy of International Law (2016) ch 3; and specifically in relation to the HCCH 2019 Judgments Convention and the MERCOSUR region, see Noodt Taquela and Ruiz Abou-Nigm (n 13).

Gains and Opportunities for the MERCOSUR Region  243 of ‘the most favourable to cooperation’ as introduced by an amendment to the Las Leñas Protocol in 2002.26 The compatibility provision is key and facilitates some very interesting regional practices of normative accommodation examined below. In relation to indirect jurisdiction, the bilateralización (‘mirror principle’)27 as the technique is known in the region, is less favourable to recognition than a system of jurisdictional filters like the one adopted in the HCCH 2019 Judgments Convention. The former, however, is quite extended in the region, and beyond,28 not only in multilateral frameworks but also in national legal systems. The bilateralización introduced in Article 20 of the Las Leñas Protocol has been considered attenuated in its restrictive effects29 as MERCOSUR has since adopted several instruments on direct jurisdiction on specific private international law categories that provide rules of (direct) international jurisdiction applicable in all the Member States. These include the 1994 Buenos Aires Protocol30 in relation to international contracts, recognising choice of forum agreements in this context, and providing as a subsidiary connecting factor that of the place of performance of the contract, the domicile of the defendant, or the domicile of the claimant if the latter has fulfilled its obligations under the contract, or the place of celebration of the contract in cases involving legal entities acting outside their place of incorporation.31 In turn, the 1996 San Luis Protocol on civil liability in relation to road traffic accidents,32 provides for the jurisdictional bases of the place of the accident, the domicile of the defendant or the domicile of the claimant.33 The 1996 Santa Maria Protocol on consumer relationships34 (not in force), provides for the domicile of the consumer as the general jurisdictional basis providing for other alternative connecting factors if advantageous to the consumer in exceptional cases.35 There are other instruments in relation to specific categories, such as multimodal transport.36 Both the Buenos Aires Protocol and the Santa Maria Protocol expressly refer to the Las Leñas Protocol and provide that their rules on direct jurisdiction need to be considered when assessing indirect jurisdiction in the context of recognition and enforcement of judgments within MERCOSUR.37 In relation to the recourse to the public policy exception as a ground for refusal, provided for as a ‘negative’ requirement in Article 20 of the Las Leñas Protocol, it is well established in the region that the conceptualisation of international public policy is that included in Article 5

26 The Amendment to the Protocol of Las Leñas was adopted by the Common Market Council (CMC) Decision 7/02. Art 35. The new wording of Art 35 reads: ‘The present Agreement does not restrict provisions of conventions on the same subject matter concluded earlier by the States Parties as far as those provisions are more favourable to cooperation’ (translated by the author). Formally, this amendment is not in force, since it requires the ratification of the four States Parties to the Protocol and Uruguay has not ratified it as of 1 October 2022. Nevertheless, this criterion is received in practice as discussed below. 27 See T Domej, ‘Recognition and Enforcement of Judgments (Civil Law)’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol 1 (Edward Elgar 2017). 28 That is the case, inter alia, in Germany and Austria, see Domej, ibid (2017) 1474. 29 MB Noodt Taquela and G Argerich, ‘Dimensiones institucional y convencional de los sistemas de reconocimiento de los Estados Mercosureños’ in D Fernández Arroyo (ed), Derecho Internacional Privado de los Estados del MERCOSUR (Zavalia 2003). 30 Protocolo de Buenos Aires sobre Jurisdicción Internacional en Materia Contractual, Decisión del MERCOSUR 1/1994, 5 August 1994. 31 1994 Buenos Aires Protocol, Arts 4–9 and 11. 32 Protocolo de San Luis en Materia de Responsabilidad Civil Emergente de Accidentes de Tránsito entre los Estados Parte del MERCOSUR, Decisión del MERCOSUR 1/1996, 25 June 1996. 33 1996 San Luis Protocol, Art 7. 34 Protocolo de Santa Maria sobre Jurisdicción Internacional en Materia de Relaciones de Consumo, Decisión del MERCOSUR 10/1996, 17 December 1996 (not yet in force). 35 1996 Santa Maria Protocol (not yet in force) Art 5. 36 Acuerdo sobre Transporte Multimodal en el Ambito del MERCOSUR, Decisión 15/1994, 17 December 1994. 37 1994 Buenos Aires Protocol, Art 14; and 1996 Santa Maria Protocol, Art 12.

244  Verónica Ruiz Abou-Nigm of the 1979 Inter-American Convention on General Rules of Private International Law.38 This Inter-American Convention provides a formula (‘manifestly contrary to the principles of public policy’) in matters of applicable law, that has become widely extended in private international law more broadly in the region, including the public policy exception as a ground for refusal of recognition and enforcement of foreign judgments. At the time of adoption of this Inter-American Convention Uruguay made a Declaration relating to the conceptualisation of the public policy exception that speaks to its international character: [T]he exception refers to the international public order as an individual juridical institution, not necessarily identifiable with the internal public order of each state. Therefore, in the opinion of Uruguay, the approved formula conveys an exceptional authorization to the various States Parties to declare in a non-discretionary and well-founded manner that the precepts of foreign law are inapplicable whenever these concretely and in a serious and open manner offend the standards and principles essential to the international public order on which each individual state bases its legal individuality.39

Some private international law scholars in the region40 argue in favour of the existence of a sub-regional public policy of MERCOSUR that can be distilled from its foundational treaties – the Treaty of Asunción and its Annex, the Protocol of Ouro Preto – as well as the decisions, resolutions and directives issued by MERCOSUR entities.41 That is also the view of the Court of Permanent Revision of MERCOSUR (TPR – Tribunal Permanente de Revisión).42 This subregional conceptualisation is not uncontested.43

B.  Regional Multilateral Provisions beyond MERCOSUR One of the characteristic features of the legal landscape of MERCOSUR countries in relation to the recognition and enforcement of foreign judgments is its multilayered and at times overlapping normativity,44 presenting a very complex pluralistic picture. The multilateral frameworks examined below remain relevant for the region, partly because of the compatibility rule included in the Protocol of Las Leñas but also because the ‘dialogue of the sources’ has become the norm rather than the exception in the context of international judicial cooperation in this region.45 The Protocol of Las Leñas aimed at harmonising and

38 See Noodt Taquela and Argerich (n 29). See further, Marcos Dotta Salgueiro ch 4 in this volume. 39 Declaration of Uruguay, Montevideo 1979. Text available at: www.oas.org/juridico/english/Sigs/b-45.html. 40 A Dreyzin de Klor, El Mercosur: Generador de una nueva fuente de derecho internacional Privado (Zavalia 1997) 323–44. 41 A Dreyzin de Klor, ‘El orden público subregional’ (1996) 12 Revista de Derecho Privado y Comunitario 12 507, 516. 42 Advisory Opinion of 3 April 2007. After acknowledging that there is a ‘national’ and an ‘international’ public policy, the Court states that in Mercosur there is a ‘regional’ public policy and that it must prevail over any other concept of public policy because it is the custody and guarantee of any rule of integration and that fundamental human rights can be mentioned as belonging to that regional public policy. See further, C Fresnedo de Aguirre, ‘Public Policy in Private International Law: Guardian or Barrier’ in V Ruiz Abou-Nigm and MB Noodt Taquela, Diversity and Integration in Private International Law (Edinburgh University Press, 2019). 43 R Nascimentos Reis, ‘Orden Público del Mercosur: Un introito’ (2007) 4 Prismas: Direito Politico, Público e Mundial 115, 125. 44 The layers and instruments examined herein are just some of the relevant ones. A more exhaustive and comprehensive mapping including the different bilateral agreements in place in MERCOSUR countries with third states, or in the case of Argentina, the different provincial laws (as recognition and enforcement of foreign judgments is devolved to the provinces) would exceed the possibilities of this contribution. 45 There are several judicial decisions in Uruguay that demonstrate that. See, inter alia, Tribunal de Apelaciones en lo Civil de Segundo Turno, 19 April 2006, No 9999-3-2004. ‘Source dialogue’ has been recognised as a general principle in the ASADIP Principles of Transnational Access to Justice, Art 1.2.a.

Gains and Opportunities for the MERCOSUR Region  245 facilitating further cooperation between the State parties of MERCOSUR without displacing what was already fostering cooperation within the region. This is also the spirit of the HCCH 2019 Judgments Convention, that aims to enhance the existing global landscape and interact with other normative frameworks to nurture further cooperation.

i.  The 1889 and 1940 Montevideo Treaties Of the 19th century codification efforts46 what remains relevant for some MERCOSUR countries is the 1889 Montevideo Treaty in force between Argentina, Paraguay and Uruguay in their relations with Bolivia, Colombia and Peru.47 Article 5 of Title III provides: Judgments … rendered in civil and commercial matters in one of the signatory States shall have the same force in the territories of the others as in the country in which they were rendered, if they meet the following requirements: a) that the judgment … has been rendered by a competent court in the international sphere; b) that it is enforceable or has become res judicata in the State in which it was rendered; c) that the party against whom it was rendered has been legally summoned and represented or declared in absentia, in accordance with the law of the country in which the trial was held; d) that it is not contrary to the public policy laws of the country where it is enforced.48

Between Argentina, Paraguay and Uruguay this Treaty has been superseded by the 1940 Montevideo Treaty on International Civil Procedure,49 that establishes the same minimum requisites for ‘circulation-eligibility’ as the 1889 Treaty, also in its Article 5. These requisites are considered essential for the recognition and enforcement of foreign judgments in the region; several of them later introduced mutatis mutandis into the national provisions of the respective countries. The Montevideo Treaties do not provide any specific criteria to assess the international jurisdiction of the court of origin of the judgment, and this is, as previously indicated, a point of discrepancy between the national legal systems in the region.

ii.  The 1928 Bustamante Code The 1928 Bustamante Code,50 also provides for the recognition and enforcement of foreign judgments and is in force between Bolivia, Brazil and Chile. In relation to the requisite of international jurisdiction of the court of origin, this international treaty provides that the assessment should

46 The first conventional provisions relating to recognition and enforcement of foreign judgments relevant in the region were those of the 1878 Lima Treaty. This Treaty was only ratified by Peru and it never entered into force. 47 Tratado de Derecho Procesal Internacional de Montevideo de 1889. See Sessions proceedings from the South American Congress of Private International Law (in Spanish) (Imprenta de Juan A Alsina 1889). 48 Translation by the author. Original in Spanish: ‘Las sentencias … dictados en asuntos civiles y comerciales en uno de los Estados signatarios, tendrán en los territorios de los demás la misma fuerza que en el país en que se han pronunciado, si reúnen los requisitos siguientes: (a) que la sentencia … haya sido expedido por tribunal competente en la esfera internacional; (b) que tenga el carácter de ejecutoriado o pasado en autoridad de cosa juzgada en el Estado en que se ha expedido; (c) que la parte contra quien se ha dictado, haya sido legalmente citada y representada o declarada rebelde, conforme a la ley del país en donde se ha seguido el juicio. d) que no se oponga a las leyes de orden público del país de su ejecución’. 49 Concluded on 19 March 1940 in Montevideo during the Second Montevideo Congress on Private International Law. Text in Spanish at: www.parlamento.gub.uy/htmlstat/pl/tratados/trat10272-4.htm. 50 Adopted in La Habana, 20 February 1928, in force in 18 countries: Argentina, Bahamas, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Peru, Dominican Republic and Venezuela.

246  Verónica Ruiz Abou-Nigm be done according to the rules of (direct) jurisdiction provided for in the same treaty.51 This is a double convention, providing for both direct and indirect jurisdiction. The public policy exception is also contemplated in this treaty as a ground for refusal.

iii.  Inter-American Conventions a.  CIDIP II (Montevideo): 1979 Inter-American Convention on Extraterritoriality of Foreign Judgments and Arbitral Awards The 1979 Inter-American Convention on Extraterritoriality of Foreign Judgments and Arbitral Awards,52 CIDIP II,53 is in force in 10 Latin American countries, including the four original States of MERCOSUR. Article 2 establishes the following circulation-eligibility requirements: (a) formal requirements necessary for judgments to be deemed authentic in the State of origin; (b) translation into the official language of the State where they are to take effect; (c) legalisation in accordance with the law of the State in which they are to take effect; (d) international jurisdiction of the judge or tribunal in accordance with the law of the State in which the judgment, award or decision is to take effect;54 (e) and f) due process guarantees substantially equivalent to that accepted by the law of the State where the judgment, award or decision is to take effect; (g) finality of the judgment or, where appropriate, res judicata status in the State where it was rendered; (and h) that the judgment is not manifestly contrary to the principles and laws of the public policy of the State in which recognition or execution is sought. In MERCOSUR countries, the interaction between different normative frameworks in this context has resulted, for instance, in the judgment creditor seeking recognition and enforcement under the provisions of the 1979 Inter-American Convention or the Las Leñas Protocol, combining them with the more favourable procedure provided for in the 1940 Montevideo Treaty.55 This interesting normative accommodation provides the possibility of seeking recognition in Uruguay of judgments rendered in Argentina or Paraguay, both States Parties to the 1940 Treaty, directly in the lower courts. The underpinning rationale for this interpretation is to facilitate the circulation of judgments therefore allowing for the most favourable rules to the cooperation. It may be argued that the ‘dialogue of the sources’, as a methodology of normative accommodation considered part of a ‘new general theory of law’,56 enables flexibility and open interpretation of international treaties so as to pursue the overarching objectives of these frameworks to their maximum efficacy.57 This is aligned with the compatibility principle provided for in Article 23(1) of the HCCH 2019 Judgments Convention.

51 Art 423 of the Bustamante Code. 52 See full text at the OAS website: www.oas.org/juridico/english/treaties/b-41.html. 53 CIDIP (for its name in Spanish) is the name of the specialised conferences on private international law celebrated under the auspices of the Organisation of American States. See further, C Fresnedo de Aguirre, ‘CIDIP’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol 1 (Edward Elgar 2017). 54 Emphasis added. 55 This is the case in Uruguayan courts. Uruguayan courts have enabled the ‘survival’ of Art 7 of the 1940 Montevideo Treaty, which provides for a specific (more expeditious) procedure for enforcement before local judges or lower courts. In Uruguay, this practice is used instead of resorting to the jurisdiction of the Supreme Court, the court otherwise designated to seek recognition and enforcement of foreign judgments. See further E Vescovi, Derecho Procesal Civil Internacional: Uruguay, el Mercosur y América (Idea 2000) 181; MB Noodt Taquela, ‘Applying the most favourable treaty or domestic rules to facilitate private international law co-operation’ (n 4) 226. 56 C Lima Marques, ‘O “Diálogo das Fontes” como método da nova teoria geral do direito: um tributo a Erik Jayme’ in C Lima Marques (ed), Diálogo das Fontes: Do conflito à coordenação de normas do direito brasileiro (Revista dos Tribunals 2012). 57 On maximum effectiveness clauses, see Noodt Taquela and Ruiz Abou-Nigm (n 13) 464.

Gains and Opportunities for the MERCOSUR Region  247 b.  CIDIP III (La Paz): 1984 Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments The 1984 Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments58 is probably the most relevant to the issues examined in this contribution, yet it has been of relatively little practical significance for the region as it has only been ratified by Mexico and Uruguay. Despite this, it is considered a highly significant instrument.59 The principles and concepts developed and agreed during that codification process could shed some light on the provisions of the new instrument, particularly in relation to the nature of jurisdictional filters. In CIDIP II, the adopted position in the 1979 Montevideo Convention, providing that the international jurisdiction of the court of origin should be assessed according to the law of the requested State, was controversial, and there was a general understanding that the issue had not definitively settled. CIDIP III, ie, the next Inter-American private international law specialised meeting was the opportunity to discuss this at length. The idea of establishing a system of indirect jurisdiction rules, ie, expressly identifying connecting factors for indirect jurisdiction, flourished during this instance, with the adoption of the 1984 La Paz Convention. The latter Convention entered into force in 2004 between Mexico, which had ratified it in 1987, and Uruguay, which ratified it in 2004, the only States Parties to the Convention. The criteria adopted for indirect jurisdiction responded to traditional and well-established connecting factors: for instance, in relation to personal actions in contract, the domicile of the defendant, accepting the prorogation of jurisdiction both expressly and tacitly, as well as the choice of forum agreements in such matters. Regarding in rem actions, the traditional differentiation between movable and immovable property was drawn, providing for both the place of location of the goods and the domicile of the defendant in the case of movable property, and the exclusive jurisdiction of the place where the property is situated in cases of immovable property. Interestingly, (indirect) forum necessitatis is recognised since the requirement of indirect jurisdiction is considered as satisfied in those cases in which the courts intervened to avoid a denial of justice due to the absence of a competent court.60 The 1984 La Paz Convention constituted a step forward in the Inter-American codification process. Despite its limited acceptance, the decoupling of direct and indirect jurisdiction rules should be helpful in the current process of assessing the potential impact of the HCCH 2019 Judgments Convention.61

C.  Bilateral Agreements In addition to the multilateral conventions and the regional framework mentioned before there are various bilateral agreements on recognition and enforcement of judgments between MERCOSUR Member States and between them and third countries. It goes beyond the 58 See full text, OAS website: www.oas.org/juridico/english/treaties/b-50.html. See further, Fresnedo de Aguirre, ‘CIDIP’ (n 53). 59 Fresnedo de Aguirre, ‘CIDIP’ (n 53) 326. 60 Art 2, 1984 La Paz Convention. Forum necessitatis is recognised as a jurisdictional ground in some national legal systems in MERCOSUR, eg, Código Civil y Comercial de la Nación Argentina, Art 2602. 61 The 1984 La Paz Convention was limited in relation to its scope of application, excluding several matters, such as (a) civil status and capacity of natural persons; (b) divorce, nullity of marriage and property regime in marriage; (c) alimony; (d) testamentary or intestate succession; (e) bankruptcy, insolvency, bankruptcy proceedings, etc.

248  Verónica Ruiz Abou-Nigm a­ nalysis in this contribution to look at the variety of these agreements, that differ in relation to their scope of application, requirements for circulation eligibility, etc. However, it is worth noticing that academic commentators have argued that in cases of clashes between these different normative layers, including bilateral agreements, the guiding principle should be favor recognitionis.62

D.  National Provisions i. Argentina In Argentina recognition and enforcement provisions are included in Article 517 of the Civil and Commercial Code of Procedure that establishes (in the absence of international treaties) the following requirements for recognition-eligibility: (a) that the judgment, that should be res ­judicata where it was rendered, emanates from a competent court according to the Argentine rules of international jurisdiction. That is, ‘bilateralización’ is also the adopted technique in Argentina as the prevailing criteria for assessing the jurisdiction of the court of origin. In turn, Article 2601 of the Civil and Commercial Code provides the relevant rules of (direct) international jurisdiction in the absence of international treaties’ provisions to that effect. It is important to note that these rules only apply in the City of Buenos Aires or in federal courts, and that the issue of recognition and enforcement of foreign judgments is of a devolved nature in Argentina, and therefore there are several different statutes in the provinces with provisions to that effect.

ii. Brazil In Brazil the recognition and enforcement of foreign judgments is provided for in its Code of Civil Procedure (CCP).63 In relation to the minimum requirements for recognition (homologação) to proceed,64 the CCP establishes five cumulative requirements for ‘circulation-eligibility’65 for a foreign decision: (a) jurisdiction of the court of origin66 (although with a very limited control of indirect jurisdiction from a Brazilian perspective); (b) due process guarantees;67 (c) finality of the decision/enforceability in the country where it was rendered;68 (d) the foreign decision should not violate a Brazilian res judicata judgment;69 and finally (e) the foreign decision shall not expressly violate public policy.70

62 Noodt Taquela, ‘Applying the most favourable treaty or domestic rules to facilitate private international law co-operation’ (n 4); and Noodt Taquela and Argerich (n 29). 63 Law No 13.105/2015, federal law in force since March 2016 that superseded the previous Code of Civil Procedure of 1973. See further, L Splitz, ‘Recognition and Enforcement of Foreign Judgments in Brazil – A Current Overview’ (2018/19) 20 Yearbook of Private International Law 221. 64 Art 963, Brazilian Code of Civil Procedure (CCP). 65 There is a sixth requirement relating to the formalities of the request – ie, that the foreign decision must be accompanied by an official translation (CCP, Art 963, V). 66 CCP, Art 963, I. 67 CCP, Art 963, II. 68 CCP, Art 963, III. 69 CCP, Art 963, IV. 70 CCP, Art 963, VI.

Gains and Opportunities for the MERCOSUR Region  249

iii. Paraguay The Code of Civil Procedure includes the relevant national provisions in Paraguay. The requirements include, mutatis mutandis, the essential requirements of the Montevideo Treaties, however adding other prerequisites such as the need for the ‘obligation which constituted the substance of the dispute to be valid under Paraguayan law’71 and that the judgment is not incompatible with another one rendered previously or simultaneously by a Paraguayan court.72 The relevant provision of the Code of Civil Procedure, Article 532, has been considered obsolete.73 Particularly, the provision that refers to the internal public order of the requested State as a ground for refusal. It has been argued that this is inconceivable and contradicts the cosmopolitan spirit of the national Constitution and many other treaties and laws adopted by the country … there is no case-law precedent on the application of this provision, and it is to be hoped that judges will interpret it according to the transnational flavour of many other legal enactments in the country.74

iv. Uruguay In Uruguay these issues are provided for in the Code of Civil Procedure,75 establishing the following essential requirements: (a) international jurisdiction of the issuing court, according to the legal system of the state of origin of the judgment (with the exception of cases involving the exclusive jurisdiction of the requested court); (b) due process requirements in relation to service and rights of defence; (c) finality of the judgment; and (d) respect for the international public policy principles of the Uruguayan legal system.76 It is expressly provided that there is no revision of the merits.77 The Uruguayan ‘lex causae’ approach to indirect jurisdiction aims at fostering cooperation, facilitating circulation. The main purpose of the verification of the international jurisdiction of the issuing court is to confirm that the court of origin has acted within the remit of its own jurisdictional rules. This position denotes respect and trust in principle in the reasonability of the rules of direct jurisdiction of other legal systems, despite them being possibly different from one’s own. Yet, it leads to a paradoxical situation where the Uruguayan system is less receptive to judgments

71 Translation by the author: Art 532 of the Code of Civil Procedure (Código Procesal Civil, Law No 1337/1998). Spanish original: ‘Las sentencias dictadas por los tribunales extranjeros tendrá fuerza ejecutoria en los términos de los tratados celebrados con el país de que provengan. Cuando no hubiere tratados, serán ejecutables si concurren los siguientes requisitos: (a) que la sentencia, con autoridad de cosa juzgada en el Estado en que fue pronunciada, emane de tribunal competente en el orden internacional y sea consecuencia del ejercicio de una acción personal, o de una acción real sobre un bien muebles, si éste ha sido trasladado a la República durante o después del juicio tramitado en el extranjero; (b) que no se halle pendiente ante un tribunal paraguayo una litis por el mismo objeto y entre las mismas partes; (c) que la parte condenada, domiciliada en la República, hubiere sido legalmente citada y representada en el juicio, o declarada rebelde conforme a la ley del país donde se sustanció el proceso; (d) que la obligación que hubiere constituido el objeto del juicio sea válida según nuestras leyes; (e) que la sentencia no contenga disposiciones contrarias al orden público interno; (f) que la sentencia reúna los requisitos necesarios para se considerada como tal en el lugar en que hubiere sido dictada, y las condiciones de autenticidad exigidas por la ley nacional; y (g) que la sentencia no sea incompatible con otra pronunciada con anterioridad o simultáneamente, por un tribunal paraguayo’. 72 Art 532 (g), Código Procesal Civil de Paraguay (1998). 73 See JA Moreno Rodriguez, ‘Paraguay’ in J Basedow et al (eds), Encyclopedia of Private International Law, Vol 1 (Edward Elgar 2017). 74 ibid. 75 Código General del Proceso, Uruguay (Ley 15.982/1988) Art 539. 76 Art 539 (8), Código General del Proceso: ‘que no contraríen manifiestamente los principios de orden público internacional de la República’ (emphasis added). 77 Art 538 (2), Código General del Proceso.

250  Verónica Ruiz Abou-Nigm from MERCOSUR countries or from Contracting States to the 1979 Inter-American Convention than to judgments from countries from outside the regional and multilateral frameworks. It has been suggested that this should operate to the contrary effect, based on the principle of the rule most favourable to the cooperation.78

E.  Regional Principles: The ASADIP Principles on Transnational Access to Justice (TRANSJUS) These Principles were adopted by the American Association of Private International Law (ASADIP) in Buenos Aires in its General Assembly of 2016. Their overarching purpose is to improve access to justice in cross-border litigation. In addition to the enunciation of several guiding principles, including ‘in dubio pro cooperationis’,79 specifically in relation to the recognition and enforcement of foreign judgments these Principles include a Chapter (7) on the effect of foreign decisions. This chapter includes a provision on indirect jurisdiction providing the following: Art 7.4 – The recognition or enforcement of a foreign decision may be refused on grounds of indirect jurisdiction only in the following cases: a) where the jurisdiction of the rendering authority is based on an exorbitant ground of jurisdiction; b) where the jurisdiction of the rendering authority is based on a choice of court agreement not freely consented to by the affected party or that is in conflict with a prior agreement that was validly concluded: and c) where the jurisdiction of the rendering authority disregarded other pending proceedings in violation of the principle of art 3.7 [dealing with parallel proceedings].

The ASADIP Principles on Transnational Access to Justice have been recognised as part of the normative framework that contributes to the overarching private international law landscape in the MERCOSUR countries.80

III.  HCCH 2019 Judgments Convention: Gains and Opportunities for the MERCOSUR Region Despite the efforts towards enhancing cooperation by means of flexible accommodation of overlapping normative frameworks in the field of recognition and enforcement of foreign judgments, this complex legal landscape has created a less than optimal situation in MERCOSUR countries. On the one hand, within the region, and because of the adoption of bilateralización, this approach, except from the subject matters where there are regional Protocols on (direct) jurisdiction, remains overly restrictive. On the other hand, in relation to judgments from outside the bloc, and in relation to the recognition and enforcement of judgments emanating from MERCOSUR countries elsewhere, the divergences between national provisions and the lack of overarching

78 Noodt Taquela, ‘Applying the Most Favourable Treaty or Domestic Rules to Facilitate Private International Law Co-operation’ (n 25). 79 Art 1.2.b. b – ‘Principle of “in dubio pro cooperationis”: International legal cooperation is essential to the balanced consideration of the parties’ rights. ‘In case of doubt generated by persistent normative conflict, solutions promoting international legal cooperation shall be favored’. 80 D Opertti Badán, ‘Prefacio’ in LB Scotti and L Klein Vieira (eds), El Derecho Internacional Privado del MERCOSUR En la Práctica de los Tribunales Internos de los Estados Partes (Dewey 2020) preface, xxi.

Gains and Opportunities for the MERCOSUR Region  251 global parameters, respectively, jeopardise the chances of judgments from the Member States of MERCOSUR being recognised and enforced elsewhere under predictable conditions, except for the rather scattered bilateral agreements to that effect. This overall situation endangers effective access to justice in these countries. What will the HCCH 2019 Judgments Convention bring to this landscape? A global framework that contributes to enhance the long-standing culture of facilitating the recognition of foreign judgments in the region as well as enabling the recognition and enforcement of MERCOSUR’s countries judgments outside the bloc and Latin America. Although with well-known limitations in relation to its scope of application,81 the new global framework, rich in mechanisms and conceptualisations that can build up understanding in this context, can contribute to materialise in practice this long-established tradition of cooperation in the region, and can lay the basis for further global engagement in this sphere. The rest of this contribution aims to highlight these opportunities and advantages.

A.  Compatibility is the Key Normative systems are inchoate and selective,82 either in terms of their subject matter scope of application, geographical reach83 or adjudicative form.84 Hence, coordination between different rule-based systems is crucial. This is a contemporary feature in private international law more generally, and in the field of recognition and enforcement of foreign judgments in MERCOSUR – as shown in the previous sections of this chapter – in particular. Different ensembles of norms will often come into play. To this effect, the main examples of coordination appear in Hague Conventions,85 and the sophistication of compatibility clauses.86 Normative accommodation in this sense is enabled, in general terms, in the 1969 Vienna Convention on the Law of Treaties, which sets a framework of secondary rules87 for international treaties to include ‘coordination clauses’.88 These exist in many international treaties in the field of indirect jurisdiction. Notably, the ever-increasing sophistication of these provisions89 tries to anticipate the many possible clashes between rule-based systems in practice. In MERCOSUR and in Latin America more extendedly, ‘source dialogue’ as a means of materialising coordination is recognised in principle90 and in practice.91 This ‘dialogue’ as theorised 81 See further Xandra Kramer, ch 1 in this volume. 82 See the list of excluded matters (Art 2) from the scope of application of the HCCH 2019 Judgments Convention. 83 eg, the limited territorial scope of the many overlapping frameworks in the MERCOSUR region. 84 The parallel regulation of international commercial litigation and international commercial arbitration is a typical example, both generating separate and not necessarily interrelated instruments. See also José Angelo Estrella Faria, ch 16 in this volume. 85 On compatibility clauses in HCCH Conventions more generally see P Volken, ‘Conflicts between Private International Law Treaties’ in WP Heere (ed), International Law and the Hague’s 75th Anniversary (TMC Asser Press 1999); S Álvarez González, ‘Cláusulas de compatibilidad en los Convenios de la Conferencia de La Haya de DIPR’ (1993) XLV Revista Española de Derecho Internacional 1, 39. 86 On compatibility clauses, see MB Noodt Taquela, ‘Applying the Most Favourable Treaty or Domestic Rules to Facilitate Private International Law Co-operation’ (n 25). 87 For instance, Art 30(2): ‘When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail’. 88 ‘Coordination clause’ is the term used by A Malan, La concurrence des conventions d’unification des règles de conflit de lois (Presses Universitaires d’Aix-Marseille, PUAM, 2002). 89 See also Art 26 of the HCCH 2005 Choice of Court Convention. 90 See ASADIP Principles of Transnational Access to Justice (2016), Principle 1.2.a. 91 Note the ‘normative accommodation’ in Uruguayan courts referred to above (section II.B.iii.a.).

252  Verónica Ruiz Abou-Nigm by Jayme92 points to the reciprocal influences between different sources, enabling the application of several sources at the same time, concurrently or alternatively; authorising the choice of the parties between instruments; or even providing for an opt-out mechanism in favour of an alternative, more suitable, solution.93 For Jayme, the ‘dialogue of the sources’ is the preferable way to resolve the possible conflicts generated by postmodern pluralism. This theory has been prominent in Latin America and MERCOSUR scholarship also through the work of Lima Marques.94 The compatibility principle recognised in Article 23 of the HCCH 2019 Judgments Convention expressly provides opportunities for this kind of ‘dialogue’, key to the coordination between normative systems. Article 23 of the HCCH 2019 Judgments Convention is sophisticated and opens several ‘windows’ for interaction in relation to the multilayered legal landscape of MERCOSUR countries. Article 15 is also noteworthy. It clearly states ‘[s]ubject to Article 6 [exclusive (indirect) jurisdiction basis], this Convention does not prevent the recognition or enforcement of judgments under national law’. As examined elsewhere95 the Convention establishes minimum standards to lay the foundations of a global system of recognition and enforcement but clearly enshrines the favor recognitionis principle throughout its provisions, so that no judgment creditor would be prejudiced if there are, under the national law or other applicable existing multilateral instruments, provisions that are more favourable to recognition and enforcement.

B.  The Facilitative Ethos Embedded in the Functionality of Jurisdictional Filters The new Convention adds value not only because of its potential global geographical scope but also because of its contribution in terms of flexibility in the provision of indirect jurisdiction enshrined in the facilitative ethos of the jurisdictional filters’ methodology. As explained by Pietro Franzina in an earlier chapter in this book ‘equivalence, rather than similarity, is key to the recognition of foreign judgments’.96 ‘The court of origin may have referred in its judgment to a basis nominally outside the list in Articles 5 and 6, but this does not prevent the judgment from being eligible for recognition under the Convention if the jurisdiction of that court is consistent, in fact, with the requirements in the Convention’.97 That is, if one of the jurisdictional pathways of Articles 5 and 6 is met the judgment can circulate under the Convention. The breadth of reasonable connections of the new regime is conducive to provide a flexible framework to lay out the basis to build up the foundations of global trust in this sphere. The criteria identified are compatible with many of the grounds for (direct) jurisdiction provided for in the legal landscape of MERCOSUR. This is not only the case in relation to the general jurisdiction basis of the domicile of the defendant, which in many scenarios would translate into the judgment debtor being habitually resident in the country of the State of origin at the time of proceedings in the court of origin commencing,98 but also the case in relation to

92 E Jayme Identité culturelle et intégration: Le droit international privé postmoderne (1995) 251 Recueil des cours (1995) 9, paras 60 and 259. 93 See C Lima Marques, ‘Procédure civile internationale et MERCOSUR: pour un dialogue des règles universelles et régionales’ (2003) 1 Uniform Law Review 465, 468. 94 ibid. 95 See further, Noodt Taquela and Ruiz Abou-Nigm (n 13). 96 Pietro Franzina, ch 3, section I.B, in this volume. 97 ibid, section II.C, in this volume. 98 Art 55(1)(a).

Gains and Opportunities for the MERCOSUR Region  253 jurisdictional bases in tort, in contract, in relation to consumers, to employees, etc. As explained in the Explanatory Report, ‘Article 5 defines the perimeter of “eligible judgments”, ie, judgments that circulate under the Convention’;99 the assessment of the requested court is limited to determining that the judgment meets one of the jurisdictional filters. It does not evaluate the court of origin’s application of its own jurisdictional rules. There are several pathways for circulation between the direct grounds of jurisdiction in MERCOSUR countries and the indirect jurisdiction criteria of the new HCCH 2019 Judgments Convention. As such, it would suffice, for instance, in a contractual matter, that the court of origin was that of the country of the habitual resident of the judgment debtor at the time when proceedings commenced in the court of origin, even if the court of origin assumed its jurisdiction, for instance, because it was the place of the domicile of the defendant, or the place of the performance of the contract. In so far as one of the 13 reasonable connections with the court of origin is present, the connecting factor need not match with the (direct) basis of jurisdiction that the court of origin took recourse to ascertain jurisdiction on the merits.100 That is why the new system is designed to be facilitative functionally up to a greater extent than previous models of recognition and enforcement of foreign judgments. This, in turn, should allow litigants to consider and make informed decisions as to where to initiate proceedings, considering in such assessment the chances of the judgment to circulate internationally under the Convention.

C.  The Opportunity to Influence the Delineation of the (International) Public Policy Exception As is the norm in most national and regional frameworks of recognition and enforcement of foreign judgments, the HCCH 2019 Judgments Convention considers public policy as a ground for refusal to recognise or enforce a foreign judgment under the Convention.101 The public policy exception is a traditional technique of private international law, and it is essential to articulate the integration of legal diversity.102 Following the Convention of 30 June 2005 on Choice of Court Agreements the conceptualisation of the public policy exception in the Convention is limited to the public policy of the requested State, not others. However, the formulation of the provision opens the door to the conceptualisation of this ground in the terms of ‘international public policy’ and the generally accepted high threshold that this entails, as analysed at the beginning of this contribution, particularly in relation to the position of Uruguay.103 The Convention adopts the subdivision into substantive and procedural public policy.104 It explicitly embodies the idea that only fundamental legal principles of the requested State are relevant. As explained in the Explanatory Report, the relevant principle should be so fundamental to the requested State that it will find its infringement unbearable. The mandatory nature of national policies, is, by itself, not enough.105 During the Special Commission meetings, Uruguay proposed including the term ‘international public policy’ explicitly and clearly in the Convention,



99 Garcimartín

and Saumier (n 1) para 134. Pietro Franzina, ch 3 in this volume. 7(1)(c). See further, Marcos Dotta Salgueiro, ch 4 in this volume. 102 See Fresnedo de Aguirre, ‘Public Policy in Private International Law’ (n 42). 103 See further, section I of this chapter. 104 See further, Domej (n 27). 105 See Garcimartín and Saumier (n 1) paras 262–64. 100 See

101 Art

254  Verónica Ruiz Abou-Nigm however ‘while the proposal received some support, some delegations noted they were unfamiliar with the term “international public policy” and expressed concerns in respect of its inclusion in the text of the Convention’.106 The adoption of the Convention represents an opportunity for this well-established conceptualisation in some countries of MERCOSUR to influence the delineation of the content of the ‘“international” public policy’107 exception through the device of uniform and autonomous interpretation108 in the new global framework. In MERCOSUR private international law scholarship, it has been argued that although the public policy exception is construed by national courts as belonging to each country, there are some fundamental principles that do not belong merely to one legal system but are shared by many. The identification of such fundamental principles derives from international or regional instruments (notably human rights but also fundamental principles of procedural fairness).109 All MERCOSUR Member States are parties to the 1979 Inter-American Convention on General Rules of Private International Law, therefore, the formulation of public policy provided in Article 5 of that Convention is applicable to cross-border cases within MERCOSUR. The narrow provision adopted in the HCCH 2019 Judgments Convention is very much aligned to the concept of international public policy as defined in the Uruguayan Declaration to the 1979 Inter-American Convention on General Rules of Private International Law as ‘an exceptional authorisation to the various States Parties to declare in a non-discretionary and well-founded manner’ whenever the foreign judgment ‘manifestly offend the standards and principles essential to the international public order on which each individual State bases its legal individuality’.110 This is particularly important for the MERCOSUR region, and the reasons are two-fold. First, the narrow conceptualisation of this private international law technique that has been paradigmatic of the Inter-American system of private international law since the Declaration of Uruguay to the 1979 Convention on General Rules of Private International Law, finds a track in a global multilateral instrument and therefore it opens an opportunity for the regional trajectory, based on a strong favor recognitionis principle, to have greater global impact by contributing to delineate a concept that other legal systems arguably are ‘unfamiliar’ with. Unfortunately, case law from the region is not easily accessible, reported cases are relatively scarce. Admittedly also, there are inconsistencies and incongruencies in the application of this technique within the region. Yet, there are ample references, particularly in academic writings, to judges and tribunals taking recourse to this narrow conceptualisation.111 Second, it provides clear guidance for limiting the misuses of the public policy exception within the region, as experienced in practice, for instance, in Brazil. Although it is widely accepted in Brazil that the public policy exception should be raised only in relation to cases of manifest incompatibility of the foreign judgment with public policy, it has been reported that the Superior

106 ibid, para 263, fn 189. 107 See further, C Fresnedo de Aguirre, ‘Public Policy: Common Principles in the American States’ (2016) 379 Recueil des cours 73. 108 Art 20 HCCH 2019 Judgments Convention. 109 Fresnedo de Aguirre, ‘Public Policy: Common Principles in the American States’ (n 107). See further, Marcos Dotta Salgueiro, ch 4 in this volume. 110 OAS documents, 13/1/1999. B.45. 111 See D Opertti Badán and C Fresnedo de Aguirre, ‘The latest trends in Latin American Law: The Uruguayan 2009 General Law on Private International Law’ (2009) 11 Yearbook of Private International Law 305. See also, A Uriondo de Martinoli, ‘La cooperación judicial internacional y el orden público en la jurisprudencia argentina’ [2005] Anuario Argentino de Derecho Internacional 94.

Gains and Opportunities for the MERCOSUR Region  255 Court of Justice (Superior Tribunal de Justiça) has taken recourse to the public policy exception, where it should have referred to other eligibility requirements provided for in Brazilian law,112 and, on other occasions, in lieu of other protective mechanisms to the granting of recognition.113 That is, the very limited indirect jurisdiction control provided for in Brazilian national provisions – limited to cases covered by exclusive bases of (direct) jurisdiction in Brazil114 – has been considered insufficient in terms of the assessment of the connection of the foreign decision with the State of origin, and as such unable to ‘protect the Brazilian system as a whole, and Brazilian litigants in particular, against the improper exercise of jurisdiction’.115 The new HCCH 2019 Judgments Convention should certainly be welcome by all countries in MERCOSUR, but in particular Brazil has much to gain from the use of jurisdictional filters against abusive exercises of jurisdiction, and the narrow conceptualisation of the ‘international’ public policy exception as a ground for refusal.

D.  Enhancing International Access to Justice The recognition and enforcement of judgments is understood in the region in the broader context of the right of access to justice.116 Access to justice is undoubtedly a broader policy goal promoted by many HCCH Conventions, and more specifically the HCCH 1980 Convention on International Access to Justice.117 The HCCH 2019 Judgments Convention represents another step in the promotion of this fundamental right. Access to justice is extensively identified as a priority in many national and regional political agendas. This is also the case in MERCOSUR countries. Effective access to justice, understood as ‘the widest possible application of this human right, especially when dealing with matters relating to jurisdiction, international judicial cooperation118 and the effectiveness119 of judgments’ was recently identified as a top priority in private international law in the broader Latin American region.120

112 See L Spitz, ‘Recognition and Enforcement of Foreign Judgments in Brazil – A Current Overview’ (2018/19) 20 Yearbook of Private International Law 221, 235–37. 113 See Gustavo Ribeiro, ‘Principio da orden publica no indeferimento de homologacao de sentencas arbitrais estrangeiras no Brasil: quando a imprecisao pode levar a desnecessidade’ (2016) 19 Revista Opiniao Juridica 86. 114 CCP, Art 964. 115 Spitz (n 112) 232. See also M De Nardi, ‘Controle indireto da jurisdicao internacional: a iautoridade competentei na homologacao de sentencia estrangeira no Brasil’ [2017] Revista da ESMAFE/RS 77. 116 See, inter alia, Madrid Martínez and Ochoa Muñoz (n 11). See also the ASADIP Principles on Transnational Access to Justice (TRANSJUS), available at: www.asadip.org/v2/wp-content/uploads/2018/08/ASADIP-TRANSJUS-EN-FINAL18. pdf. 117 Concluded on 25 October 1980. At the time of writing, it has 28 Contracting States. Brazil is the only MERCOSUR country that has ratified this Convention. 118 For a comprehensive analysis of international cooperation see D McClean, International Co-operation in Civil and Criminal Matters, 3rd edn (Oxford University Press 2012). See also, D McClean, ‘Judicial Cooperation: Resolving the Differing Approaches in V Ruiz Abou-Nigm and MB Noodt Taquela (eds), Diversity and Integration in Private International Law (Edinburgh University Press 2019). 119 In relation to ‘effectiveness’ as central to the conceptualisation of access to justice as a human right, see M Albornoz, ‘Acceso a la justicia en las relaciones privadas internacionales: intereses en juego’ (2017) 5 Revista de la Secretaria de Tribunal Permanente de Revision 170, 176. 120 See ASADIP/HCCH, ‘The Future of Private International Law and the Challenges to The Hague Conference on Private International Law within the next 25 Years – A survey conducted jointly by ASADIP and the Regional Office of the HCCH for Latin America and the Caribbean (2017–2018). Final Report’, available at: www.asadip.org/v2/wp-content/ uploads/2019/02/HCCH-ASADIP-Survey.-Final-Report.pdf, 2.

256  Verónica Ruiz Abou-Nigm In the sphere of recognition and enforcement of foreign judgments, the regional context is one of limited resources when it comes to national courts and tribunals. That exacerbates the importance of effective access to remedies and reparation by means of recognition and enforcement. That is, in countries where (direct) jurisdictional bases are rather narrow, for policy reasons,121 the avenues for recognition and enforcement of judgments become even more crucial to guaranteeing effective access to justice. This is all the more important to the claimants who cannot afford litigating outside their own jurisdiction, yet could gain considerably from a system that could guarantee their right to get recognition and enforcement of the resulting judgment elsewhere, including outside the region, in another Contracting State of the HCCH 2019 Judgments Convention. Many of the rules of (direct) jurisdiction provided for in the constellation of private international law rules applicable in the MERCOSUR countries align with the jurisdictional filters of the HCCH 2019 Judgments Convention; hence, this would enable the judgments from the region to be recognised under the Convention in other Contracting States. This consideration is of central importance globally; however, it may be argued that is even more crucial to the effectiveness of the fundamental human right of access to justice in the social and economic context of a region characterised by profound inequalities.122 The HCCH 2019 Judgments Convention is conducive to the materialisation of this effectiveness in various ways. The core distinction between indirect and direct jurisdiction itself can be seen in this light. This decoupling has been signalled by commentators as necessary in the region.123 Based on the principle of favor cooperationis it has been argued in the region that the control of the jurisdiction of the court of origin should be flexible, based on reasonable jurisdictional criteria.124 The HCCH 2019 Judgments Convention offers that flexibility and more, enacting the facilitative methodology of jurisdictional filters, an innovative means of dealing with legal diversity aligned with the internationalist spirit of international judicial cooperation in MERCOSUR countries. Along these lines, the HCCH 2019 Judgments Convention has the potential to contribute to strengthen the global implementation of SDG 16 (‘promote access to justice for all’)125 well beyond 2030.126

IV.  Concluding Remarks The HCCH 2019 Judgments Convention provides a pathway for global understanding in the field of recognition and enforcement of foreign judgments. From a South American perspective, this outstanding achievement should resonate and find fertile ground. Private international law 121 The narrow approach to direct jurisdiction is usually justified in terms of reasonableness, yet, it also relates to the limited resources MERCOSUR countries devoted to the public adjudication of cross-border disputes. 122 See, inter alia, the work of the Supreme Court of Costa Rica on SDG 16 and transnational access to justice. In relation to international judicial cooperation see ‘Sexto Informe de Avances en relación a la Agenda 2030 en el Poder Judicial’ (2022) 144 ff available at: ocri.poder-judicial.go.cr/documentos-de-interes/publicaciones. 123 Madrid Martínez and Ochoa Muñoz (n 11). EU Regulation 1215/2012. 124 Madrid Martínez and Ochoa Muñoz (n 11) 340. 125 R Michaels, V Ruiz Abou-Nigm and Hs van Loon (eds), The Private Side of Transforming our World: UN Sustainable Development Goals 2030 and the Role of Private International Law (Intersentia 2020), also accessible (open access) at: www.intersentiaonline.com/library/the-private-side-of-transforming-our-world-un-sustainable-development-goals2030-and-the-role-of-p. 126 See S Robert and P Ricard (eds), ILA Whitepaper on SDGs beyond 2030 (2022).

Gains and Opportunities for the MERCOSUR Region  257 in South America has been traditionally characterised as internationalist, fulfilling its facilitative function,127 open to the world. South America has for a long time been a region where multilateralism has flourished, including in the field of recognition and enforcement of foreign judgments. MERCOSUR countries should continue to influence the trajectory in the global context, and as Uruguay has shown, leadership is paramount. There is much to be gained for the region, and ample opportunities to contribute to the success of this pivotal global endeavour, diffusing that well-established Latin American tradition of cooperation.

127 See the distinction between the normative and the facilitative (or enabling) functions of private international law in R Michaels, V Ruiz Abou-Nigm and H van Loon, ‘Introduction: The Private Side of Transforming Our World’ in R Michaels, V Ruiz Abou-Nigm and H van Loon (eds), The Private Side of Transforming Our World: UN Sustainable Development Goals 2030 and the Role of Private International Law (Intersentia 2021).

258

12 Perspectives for ASEAN ADELINE CHONG*

I. Introduction The Association of Southeast Asian Nations (ASEAN) comprises of 10 Member States: the four common law countries of Brunei, Malaysia, Myanmar and Singapore; the five civil law countries of Cambodia, Indonesia, Lao PDR, Thailand and Vietnam; and the mixed legal system of the Philippines. The diversity exhibited in terms of legal tradition can also be observed in relation to ASEAN’s cultural heritage and political environment. Yet, despite this diversity, ASEAN has formed closer ties by launching the ASEAN Community in 2015. The three pillars of the ASEAN Community are the Political-Security Community, the Socio-Cultural Community and, most relevantly for this book, the Economic Community (AEC). The AEC aims to position ASEAN as ‘a single market and product base …. fully integrated into the global economy’.1 In line with the aims of the AEC, the 10 ASEAN Member States along with five regional trade partners2 concluded the Regional Comprehensive Economic Partnership (RCEP), which has been lauded as the world’s largest free trade agreement.3 The RCEP is currently in force in 13 of the signatory States.4 The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) was signed by 11 Asia-Pacific countries including Brunei, Malaysia, Singapore and Vietnam and is currently in force in nine countries including Malaysia, Singapore and Vietnam.5 The CPTPP is also one of the world’s largest free trade agreements. Not to mention, many of the ASEAN Member States form key nodes in China’s Belt and Road Initiative (BRI).6 This growth of interconnectivity in trade, not only within ASEAN but also between ASEAN and the rest of the world, will inevitably lead to an increase in cross-border disputes and litigation. This then gives rise to a need to ensure that a judgment rendered by the court of one country can easily be recognised and enforced in the court of another country. The conclusion of the

* Dr Adeline Chong, Yong Pung How School of Law, Singapore Management University (orcid.org/0000-00024735-0185). 1 asean.org/our-communities/economic-community/. 2 ie, Australia, China, Japan, New Zealand and South Korea. 3 C Brown and H Winter, ‘The ASEAN Legal Framework for Free Trade and the Promotion and Protection of Foreign Investment’ in M Mohan and C Brown (eds), The Asian Turn in Foreign Investment (Cambridge University Press 2021) 198. 4 ie, Brunei, Cambodia, Lao PDR, Malaysia, Myanmar, Singapore, Thailand and Vietnam, as well as the non-ASEAN States of Australia, China, Japan, New Zealand and South Korea. 5 It has also entered into force in Australia, Canada, Japan, Mexico, New Zealand and Peru. See also Zheng Tang, Ch 15. 6 On which, see Zheng Tang, ch 14, section II, in this volume.

260  Adeline Chong Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the Convention or HCCH 2019 Judgments Convention) is therefore very timely for ASEAN. The success of the Convention in the region depends on the following factors. First, how acceptable the Convention’s rules are to each Member State. This can be assessed by considering how similar the Convention’s rules are to existing national laws on foreign judgments. This issue is considered in section II, which provides an overview of the existing national foreign judgments regimes, and section III, which undertakes a comparison between the existing national regimes and the primary provisions of the Convention. Second, a country, in determining whether to sign up to the Convention, would also be keen to reap the benefit of having its judgments circulate under the Convention. Thus, how well a judgment from an ASEAN Member State would likely fare under the Convention’s rules will be examined in section IV. Third, accession to the Convention is also dependent on non-legal factors such as whether there is political will to enhance or reform the existing local foreign judgments regime. This will likely vary across the region and affect the route by which the Convention could take effect. This is the focus of section V.

II.  Overview of Foreign Judgments Rules in the ASEAN Member States It is useful to approach this discussion by considering the common law countries, civil law countries and the one mixed legal system in turn.

A.  Common Law Countries: Brunei, Malaysia, Myanmar and Singapore The common law countries accept the principle that a foreign judgment, provided it satisfies certain requirements, can be recognised and enforced. The recognition and enforcement of foreign judgment rules in Brunei, Malaysia, Myanmar and Singapore closely follow the English rules as all are former British colonies. Brunei,7 Malaysia8 and Singapore9 each have a statutory registration regime for the enforcement of foreign judgments which is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933. Only foreign judgments from courts of countries gazetted under the respective statute qualify for registration under the statute. Judgments from the courts of other countries, however, can still be recognised and enforced under the common law rules. The common law rules are again primarily modelled on the English common law rules. In terms of differences between the two modes, registration under the statute is an easier mechanism compared with the more laborious process of commencing a fresh action based on the foreign judgment at common law. Further, reciprocity is not a prerequisite under the common

7 Reciprocal Enforcement of Foreign Judgments Act (Cap 177, 2000 rev edn) (Brunei). 8 Reciprocal Enforcement of Judgments Act 1958 (Act 99, 1972 rev edn) (Malaysia). 9 Reciprocal Enforcement of Foreign Judgments Act 1959 (2020 rev edn) (Singapore). Singapore has two other statutes on foreign judgments: the Reciprocal Enforcement of Commonwealth Judgments Act 1921 (2020 rev edn) which is based on the UK Administration of Justice Act 1920 and has been repealed by Reciprocal Enforcement of Commonwealth Judgments (Repeal) Act 2019 with effect from a date to be determined by the government, and the Choice of Court Agreements Act 2016 (2020 rev edn), which enacts the Hague Convention on Choice of Court Agreements into Singapore law.

Perspectives for ASEAN  261 law rules10 but countries are only gazetted under the statutory schemes if they are categorised as a ‘reciprocating’ country or territory. That said, the substantive content of the statutory rules and common law rules are similar.11 Ignoring the finer differences between the laws of each of these three countries and between the statutory rules and the common law rules, generally,12 a foreign judgment will be recognised and enforced if it is for a money judgment that is not a tax, fine or other penalty, was rendered by a court which had international jurisdiction over the dispute, the judgment is final and conclusive and no defences can be raised against the recognition and enforcement of the judgment. The defences of fraud, breach of natural justice and public policy can be pleaded against the recognition and enforcement of a foreign judgment. Myanmar (then Burma) was a province of British India and its provision on the recognition and enforcement of foreign judgments in its Civil Procedure Code13 is imported from the Indian Civil Procedure Code 1908.14 Section 13 of Myanmar’s Civil Procedure Code provides: A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, or between parties under whom they or any of them claim, litigating under the same title, except ̶ (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of the Union of Myanmar in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in the Union of Myanmar.

It can be seen that the requirements under the law of Myanmar closely approximate those found under the laws of Brunei, Malaysia and Singapore. While sub-paragraphs (c) and (f) are not expressly dealt with under the laws of the other three countries, they can be seen as examples of when a foreign judgment may contravene the public policy of Myanmar.15 It is unclear whether a non-monetary judgment can be enforced pursuant to section 13 of the Civil Procedure Code of Myanmar.16 Among the other three countries, only Singapore allows for the enforcement of a non-monetary judgment under the Reciprocal Enforcement of Foreign Judgments Act17 and the Choice of Court Agreements Act,18 but not under the common law rules. 10 However, in a recent decision, the Singapore Court of Appeal left open the question whether reciprocity should be a precondition to the recognition of foreign judgments under the common law rules: Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck [2021] 1 SLR 1102 (CA Singapore), [39]. This is contrary to the orthodox established position that reciprocity does not apply at common law. 11 Singapore’s Reciprocal of Enforcement Foreign Judgments Act 1959 was extensively amended in 2019 and has deviated from the UK Act and common law rules by, inter alia, allowing for the registration of foreign non-monetary judgments and interlocutory judgments. 12 See generally, the following country reports in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (ABLI 2017): C Ong, ‘Brunei’; Choong YC, ‘Malaysia’; A Chong, ‘Singapore’. 13 Code of Civil Procedure 1908 (Myanmar) s 13. 14 Code of Civil Procedure 1908 (Act V of 1908) (India) s 13. 15 Z Thura, ‘Myanmar’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters, Studies in Private International Law – Asia (Hart Publishing 2019) 212. 16 Compare Minn NO, ‘Myanmar’ in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (ABLI 2017) paras 10–11 with Thura (n 15) 218–19. 17 Reciprocal Enforcement of Foreign Judgments Act 1959 (2020 rev edn) s 4(4)(a). This provides for the registration of a non-monetary judgment if the court is satisfied that enforcement of the judgment would be ‘just and convenient’. 18 Choice of Court Agreements Act 2016 (2020 rev edn).

262  Adeline Chong

B.  Civil Law Countries: Cambodia, Indonesia, Lao PDR, Thailand and Vietnam In contrast with the common law position, obtaining the recognition and enforcement of a foreign judgment in the civil law countries of ASEAN is generally more challenging, as there is a requirement of reciprocity. Moreover, the laws on foreign judgments in the civil law countries are more varied in nature. The general position under Indonesian and Thai laws is that foreign judgments are not entitled to enforcement. There is reason to believe that this position is not intractable. As to Indonesian law, Article 436 of the Reglement op de Burgerlijke Rechtsvordering provides that all foreign judgments are unenforceable except for foreign judgments in matters of general maritime average.19 While an exception can be made if Indonesia has entered into a treaty or other reciprocal agreement with another country for the recognition and enforcement of each other’s judgments, Indonesia has yet to enter into such a treaty or agreement.20 Indonesian scholars are, however, of the view that foreign judgments which are declaratory or constitutive in nature,21 for example, a judgment declaring the validity of a contract (declaratory judgment) or a judgment annulling a contract (constitutive judgment), would be entitled to recognition under Indonesian law.22 Further, a foreign judgment may be accepted as prima facie evidence in a fresh action before an Indonesian court, although there is no hard and fast rule as to this.23 Intriguingly, in PT Bank Maybank Indonesia Tbk v PT Pan Brothers Tbk,24 the Central Jakarta Commercial Court rejected a petition to place an Indonesian debtor under restructuring proceedings because the Singapore High Court had previously granted a worldwide moratorium prohibiting the commencement or continuation of proceedings against the debtor. This could be taken as one sign that Indonesian courts’ attitudes towards foreign judgments are evolving.25 As to Thai law, its Conflict of Laws Act BE 2481 is considered not to cover foreign judgments.26 There is a 1918 Thai Supreme Court decision which accepts that foreign judgments are enforceable in principle, if the court of origin is a court of competent jurisdiction27 and the foreign judgment is final and conclusive on the merits of the case.28 These requirements echo the requirements at common law. However, this decision has been heavily criticised.29 Instead, the generally accepted position is that foreign judgments are not entitled to recognition and

19 YU Opposunggu, ‘Indonesia’ in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (ABLI 2017) paras 29–32; A Kusumadara, ‘Indonesia’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters, Studies in Private International Law – Asia (Hart Publishing, 2019). 20 Opposunggu (n 19) para 23; Kusumadara (n 19). 21 Declaratory judgments confirm a legal status or position whereas a constitutive judgment creates or abolishes a new legal condition: Oppusunggu (n 19) para 20; Kusumadara (n 19) 244. 22 Oppusunggu (n 19) paras 26, 33, 37; Kusumadara (n 19) 244. 23 Opposunggu (n 19) para 36; Kusumadara (n 19) 244. 24 Judgment No 245/Pdt Sus-PKPU/2021/PN.Niaga Jkt Pst (noted by Wong Partnership LLP and Lubis Santosa & Maramis, ‘Indonesia Update: Positive Developments in Singapore-Indonesia Cross-Border Restructurings’ 1 November 2021: www. wongpartnership.com/insights/detail/positive-developments-in-singapore-indonesia-cross-border-restructurings. 25 cf the earlier decision of PT Nizwar v Navigation Maritime Bulgare Reg No 2944 K/Pdt/1983 (29 November 1994). 26 P Sooksripaisarnkit, ‘Kingdom of Thailand’ in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (ABLI 2017) paras 4–7; A Laowonsiri, ‘Thailand’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters, Studies in Private International Law – Asia (Hart Publishing 2019), 264. 27 Although it is unclear from the judgment which law assesses the competency of the court of origin, it is likely to be Thai law, ie, the law of the court addressed, given the similarity in the principles articulated in this decision with the principles on the recognition and enforcement of foreign judgments under English law. 28 Case No 585/2461 (1918). For a discussion of this case, see Sooksripaisarnkit (n 26) paras 8–9. 29 Sooksripaisarnkit (n 26) para 9.

Perspectives for ASEAN  263 enforcement under Thai law.30 That said, there have been cases where a foreign judgment is put forward as evidence in fresh Thai actions and the court has accepted that evidence.31 Thailand has also enacted the International Convention on Civil Liability for Oil Pollution Damage 1992 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution 1992 into its law. Both Conventions,32 and the respective Thai enactments,33 provide for the enforcement of judgments rendered by the courts of other Contracting Parties to these Conventions. Lao PDR, Cambodia and Vietnam each have a framework for the recognition and enforcement of foreign judgments, but the ease of obtaining a successful application varies. A further hurdle is that in Lao PDR and Cambodia, publicly available information on actions on foreign judgments before the respective courts or indeed any court decisions is scarce.34 Thus, there are difficulties in ascertaining how the conditions for the recognition and enforcement of foreign judgments are to be interpreted. What is clear, though, is that each country requires reciprocity to be demonstrated as a prerequisite to recognising and enforcing a foreign judgment but how the requirement is satisfied varies. Under the law of Lao PDR, there needs to be an agreement which covers foreign judgments between Lao PDR and the State of origin.35 Lao PDR has to date entered into such agreements with Vietnam36 and China.37 Further to that, Lao’s Amended Law on Civil Procedure imposes other conditions, some of which overlap with the conditions under the treaties already concluded by Lao PDR. The foreign judgment must be final, the judgment debtor must have participated in the proceedings, the matter is not considered to be subject to the jurisdiction of the Lao PDR court and the foreign judgment must not affect the sovereignty, violate the laws of Lao PDR or peace and social order of Lao PDR. There is also a catch-all condition that there are no ‘other issues’ relating to the foreign judgment.38 Under Cambodian law, there has to be a mechanism which guarantees recognition of a Cambodian court judgment in that particular foreign court.39 While this mechanism need not be in the form of an agreement or treaty, it is unclear what else would qualify.40 In this regard, Cambodia and Vietnam have concluded a treaty on judicial assistance which covers the recognition and enforcement of each other’s judgments.41 The other requirements, set out in Article 199

30 ibid, para 21. 31 eg, Case No 2551/2548 (2005) and Case No 6565/2544 (2001). For a discussion of these cases, see A Chong, ‘Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia’ (2020) 16 Journal of Private International Law 31, 39–40. 32 Art 10 (Oil Pollution Damage Convention) and Art 8 (Contributions Convention) respectively. 33 Civil Liability for Oil Pollution Damage Caused by Ships Act BE 2560 (2017) Art 36; and Requirement of Contributions to the International Fund for Compensation for Oil Pollution Damage Caused by Ships Act BE 2560 (2017) Art 34. 34 See the following country reports in Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia: X Chanthala and K Santivong, ‘Lao’, para 6; Y Bun, ‘Cambodia’, para 5; A Larkin and P Yun, ‘Cambodia’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters, Studies in Private International Law – Asia (Hart Publishing 2019) 201, fn 1. 35 Amended Law on Civil Procedure (No 13/NA) (4 July 2012) (Lao PDR) Art 362. 36 Agreement on Judicial Cooperation in Civil and Criminal Matters between Lao PDR and the Socialist Republic of Vietnam (6 July 1998). 37 Agreement on Judicial Cooperation in Civil and Criminal Matters between Lao PDR and the People’s Republic of China (25 January 1999). 38 Amended Law on Civil Procedure (No 13/NA) (4 July 2012) (Lao PDR) Arts 362 and 366. See Chanthala and Santivong (n 34) paras 3–5. 39 Civil Procedure Code (2006) (Cambodia), Art 199(c). 40 Bun (n 34) paras 15–17. 41 Agreement on Mutual Judicial Assistance in Civil Matters between the Kingdom of Cambodia and the Socialist Republic of Vietnam (21 January 2013).

264  Adeline Chong of the Civil Procedure Code are that jurisdiction is properly conferred on the foreign court by law or by treaty, the judgment debtor received service of the summons or any other order necessary to commence the action or responded without such service and the content of the foreign judgment and the procedures followed in the court of origin do not violate the public order or morals of Cambodia. A further condition is that the foreign judgment must be final and binding.42 Among all the civil law countries of ASEAN, Vietnam’s laws on foreign judgments are the most advanced. Publicly available statistics indicate that Vietnamese courts are increasingly prepared to recognise and enforce foreign judgments, albeit the overall number of cases is low.43 Vietnam has signed a good number of bilateral agreements covering the topic with various countries, including fellow ASEAN Member States Laos and Cambodia.44 Outside the bilateral agreements, Vietnam’s Civil Procedure Code provides for the recognition and enforcement of foreign judgments on the basis of reciprocity.45 The Ministry of Foreign Affairs is in charge of confirming if reciprocity exists between Vietnam and another country, but there is little information on the criteria to satisfy the reciprocity requirement.46 Considering recent judgments, it appears that reciprocity is satisfied provided that the foreign judgment satisfies the other requirements for recognition and enforcement under Vietnamese law.47 These include that the foreign judgment must have taken legal effect under the law of the State of origin, due process was accorded to the judgment debtor and the foreign court had jurisdiction to hear the case according to Vietnamese laws. Other requirements are that there is no Vietnamese judgment on the same matter, the same matter was not brought before the Vietnamese courts prior to proceedings being commenced in the court of origin and the Vietnamese proceedings are ongoing, the Vietnamese courts have not recognised the judgment of another foreign court on the same matter, the time limit for enforcement has not expired under the law of the State of origin, the judgment has not been set aside or terminated in the State of origin and the foreign judgment is not contrary to basic principles of the law of Vietnam.48 In sum, the civil law countries of ASEAN display varying degrees of receptiveness to the recognition and enforcement of foreign judgments. However, even Indonesia and Thailand give effect to certain foreign judgments in fresh local proceedings. The requirement of reciprocity imposed by civil law countries may also be ameliorated by the signing of the Nanning Statement at the Second China–ASEAN Justice Forum in 2017. The Nanning Statement adopts presumptive

42 Civil Procedure Code (2006) (Cambodia), Art 352(3). 43 Compare the trend between 1994 to 2011 and between 2012 to 2019: See Nguyen Ngoc Minh, Tran Ha Han and Nguyen Thi Thu Trang, ‘Vietnam’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters, Studies in Private International Law – Asia (Hart Publishing 2019) 196; and YKVN Legal Takeaway: Foreign Court Judgments and Arbitral Awards in Vietnam, 6 January 2021 (www.ykvn-law.com/ foreign-court-judgments-and-arbitral-awards-in-vietnam/). 44 For a list of countries which have entered into bilateral agreements which cover the mutual recognition and enforcement of judgments with Vietnam, see Ngọc Bich Du, ‘Socialist Republic of Vietnam’ in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (ABLI 2017) para 3; Nguyen Ngoc Minh, Tran Ha Han and Nguyen Thi Thu Trang (n 43) 184–85. 45 Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 423(1)(b). 46 Ngọc Bich Du (n 44) para 10. 47 eg, Choongnam Spinning v E&T Company Decision No 2083/2007/QĐST-KDTM (People’s Court of Ho Chi Minh City), affirmed on appeal in Choongnam Spinning v E&T Company Decision No 62/2008/QDKDTM-PT (Court of Appeal of the Supreme People’s Court in Ho Chi Minh City); DBS Bank Limited v Ms Vu Thi Bich Loan No.1186/2016/QĐST-DS (2 December 2016, First Instance Court of Ho Chi Minh City), affirmed on appeal in DBS Bank Limited v Ms Vu Thi Bich Loan No 111/2017/QĐPTKDTM (21 June 2017, Court of Appeal of the Supreme People’s Court in Ho Chi Minh City). 48 Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 439. See further, Ngọc Bich Du (n 44) paras 23–42; Nguyen Ngoc Minh, Tran Ha Han and Nguyen Thi Thu Trang (n 43) 188–92.

Perspectives for ASEAN  265 reciprocity,49 ie, the enforcing court will presume that there is a reciprocal relationship between the countries of the enforcing court and the court of origin provided there is no precedent where a judgment of the former court has been refused recognition and enforcement in the latter court on the ground of lack of reciprocity. That said, the Nanning Statement is non-binding and it remains to be seen if the Statement in and of itself would satisfy the requirement under some of the countries’ laws that there has to be an agreement on the recognition and enforcement of foreign judgments between the relevant countries.

C.  Mixed Legal System: The Philippines The legal system of the Philippines is based primarily on US and Spanish laws. Foreign judgments are dealt with under section 48 of rule 39 of the Philippines Rules of Court which provides that a final judgment of a foreign court which has jurisdiction to render the judgment can be recognised and enforced unless there is evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Further, the foreign judgment cannot be against the laws, customs or public policy of the Philippines.50 There is no requirement of reciprocity; references to reciprocity in court decisions51 are an allusion to the principle of comity being the foundation for the recognition and enforcement of foreign judgments under the law of the Philippines.52

III.  Comparison of the ASEAN Foreign Judgment Rules with the Provisions of the HCCH 2019 Judgments Convention From the survey above, it can be seen that the ASEAN Member States, with the exception of Indonesia and Thailand, generally allow for the recognition and enforcement of a foreign judgment. The primary requirements are that: first, the judgment is final; second, the court of origin had international jurisdiction; third, there are no grounds to refuse recognition or enforcement such as a lack of due process in the proceedings leading up to the judgment; and, fourth, there is reciprocity between the State of origin and the requested State.53 The corresponding provisions in the HCCH 2019 Judgments Convention which deal with the first three requirements can be found in Chapter II, in particular, Articles 4, 5 and 7 of the Convention. The fourth requirement, which is adopted mainly by the civil law countries of ASEAN, would be satisfied amongst Contracting Parties to the Convention, assuming that the opt-out provision in Article 29 is not invoked.

49 Nanning Statement, Art 7. English language text available at: www.chinajusticeobserver.com/p/nanning-statementof-the-2nd-china-asean-justice-forum. 50 Civil Code of the Philippines (Republic Act No 386) (1949) Art 17. 51 eg, Mijares v Ranada GR No 139325 (12 April 2005); Asiavest Merchant Bankers (M) Berhad v Court of Appeals and Philippine National Construction Corporation GR No 110263 (20 July 2001). 52 E Aguiling-Pangalangan, ‘The Philippines’ in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (ABLI 2017) paras 7–8. 53 See further, A Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020) which is a statement of the laws on foreign judgments in the ASEAN Member States and Australia, China, India, Japan and South Korea.

266  Adeline Chong While the Convention covers many issues, this section will compare the aforementioned provisions with the laws of the ASEAN Member States on these issues. In many ways, these four issues form the heart of any regime dealing with foreign judgments. Further, the types of judgments eligible for enforcement under national laws54 and the Convention should also be compared. In this regard, the issue of non-monetary judgments, which are within the scope of the Convention55 but are not enforceable under the common law rules will be considered.

A. Finality Article 4(3) provides that: ‘A judgment shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin’. This is analogous to the requirement, found in many countries, that a foreign judgment be final and conclusive. However, as there is a possibility that a judgment which is recognised or enforced in the requested State may be overruled on appeal in the court of origin, Article 4(4) allows the court addressed to postpone or refuse the recognition or enforcement of a judgment if it is undergoing a review in the State of origin or if the time limit for seeking ordinary review has not expired. Both Article 4(3) and 4(4) work in tandem to accommodate the different conceptions of ‘finality’ and approaches in relation to judgments which are being or can be appealed in the State of origin56 adopted by the ASEAN Member States. Most of the countries refer the issue of finality or effectiveness and enforceability of a judgment to the law of the State of origin,57 which is consistent with the ethos of Article 4(3). The common law countries consider that a judgment which is being appealed or still capable of being appealed to a superior court in the court of origin as being ‘final’,58 although for practical reasons the court addressed will frequently stay the enforcement proceedings until any appeal has been reviewed in the State of origin.59 Lao PDR60 and the Philippines61 consider a judgment to be final only upon an appeal being rejected or the expiry of the time limit for appeal. Overall, it is difficult to envisage any of the ASEAN Member States objecting to the operation of Article 4(3) and 4(4).

B.  Grounds of Indirect Jurisdiction The architectural heart of the HCCH 2019 Judgments Convention can be found in Article 5, which sets out a list of bases for the recognition and enforcement of a foreign judgment, and Article 7, which provides a list of grounds for refusal to recognise or enforce a foreign judgment. Both lists are exhaustive for the purpose of determining whether a judgment will circulate under

54 See further Wolfgang Hau, ch 2, section III, in this volume. 55 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 96. 56 See generally, Bich Ngọc Du (lead author), ‘Finality’ in Adeline Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020) paras l–s. 57 ibid, paras c–e. 58 See the following country reports in Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia: Ong, ‘Brunei’, para 30; Choong, ‘Malaysia’, paras 12 and 24; Minn (n 16), ‘Myanmar’, para 12, fn 7; Chong, ‘Singapore’, para 14. 59 Ong, ‘Brunei’ (n 12) para 30. 60 Amended Law on Civil Procedure (No 13/NA) (4 July 2012) (Lao PDR), Art 366; Chanthala and Santivong (n 34) para 5. 61 Aguiling-Pangalangan (n 52) para 25.

Perspectives for ASEAN  267 the Convention. The content of these two provisions and how acceptable they are will likely form the crux of a State’s decision to sign up to the Convention. Article 5 sets out a list of heads of indirect jurisdiction which specify the types of acceptable connections which would confer international jurisdiction on the court of origin. The heads of indirect jurisdiction are also known as ‘jurisdictional filters’62 as they ‘filter’ out judgments stemming from courts with an unacceptable connection.63 The 13 jurisdictional filters set out in Article 5(1) can broadly be divided into three types of connections: connections between the State of origin and the judgment debtor, connections established by consent, and connections between the claim and the State of origin.64 These have been described in detail elsewhere.65 Article 5 is qualified by Articles 6 and 15. Article 6 provides that: ‘Notwithstanding Article 5, a judgment that 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’. Article 15 states that: ‘Subject to Article 6, this Convention does not prevent the recognition or enforcement of judgments under national law’. The net effect of these provisions is that the Article 5 jurisdictional filters provide a ‘floor and not a ceiling’:66 a Contracting Party is free, with the exception of judgments on in rem rights in immovable property, to recognise or enforce a judgment under its national rules even though it does not satisfy the Convention’s requirements. As Article 15 allows for the continued recognition and enforcement of foreign judgments under national law, grounds of jurisdiction which are adopted under national law but not in Article 5 of the Convention do not pose an issue. Instead, what is relevant is to consider if the filters which apply under the Convention but not under national law would be an impediment to the adoption of the Convention by an ASEAN Member State. Insofar as the common law countries of ASEAN are concerned, a foreign court is considered to have international jurisdiction if the defendant was present or resident in the State of origin, or had submitted to the jurisdiction of the court of origin.67 There is an absence of jurisdictional grounds based on a connection between the claim and the State of origin, which is the largest category of connections in Article 5(1).68 While a court may consider itself competent to assume jurisdiction on the basis of such a connection,69 there is no symmetry between the rules of direct jurisdiction and rules of indirect jurisdiction under the common law.70 The grounds of international jurisdiction under Cambodian law are unclear.71 The Amended Law on Civil Procedure of Lao is silent on any requirement of international jurisdiction apart from mandating that the matter must not be subject to the jurisdiction of the Lao PDR courts.72

62 Garcimartín and Saumier (n 55) paras 23, 134. 63 M Weller, ‘The Jurisdictional Filters of the HCCH 2019 Judgments Convention’ (2019/20) 21 Yearbook of Private International Law 279, 281. 64 Garcimartín and Saumier (n 55) para 138. 65 Pietro Franzina, ch 3 in this volume. 66 RA Brand, ‘The Hague Judgments Convention in the United States: A “Game Changer” or a New Path to the Old Game?’ (2021) 82 University of Pittsburgh Law Review 847, 876. 67 See the following country reports in Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia: Ong, ‘Brunei’, para 24; Choong, ‘Malaysia’, para 24; A Chong, ‘Singapore’, para 15; Memorandum of Guidance as to Enforcement of Money Judgments between the Supreme Court of the Union, Republic of the Union of Myanmar and the Supreme Court of the Republic of Singapore (signed 10 February 2020) para 17. 68 cf Canada: Beals v Saldanha [2003] 3 SCR 416 (Supreme Court of Canada). 69 eg, Rules of Court 2012 (Malaysia), Order 11 rule 1; Rules of Court 2021 (Singapore), Order 8 rule 1 and Supreme Court Practice Directions 2021 (to be read with Rules of Court 2021), para 63. 70 At least for commercial cases: Schibsby v Westenholz (1870) LR 6 QB 155. cf Travers v Holley [1953] P 246 (recognition of a foreign divorce). 71 Bun (n 34) para 9, fn 4. 72 Amended Law on Civil Procedure (No 13/NA) (4 July 2012) (Lao PDR) Art 366.

268  Adeline Chong However, its bilateral agreement with China spells out grounds of international jurisdiction which largely cohere with some of the grounds found in Article 5 of the Convention.73 Vietnam’s Civil Procedure Code 2015 provides that a foreign court has international jurisdiction if two conditions are met. First, the case does not fall within the exclusive jurisdiction of the Vietnamese court.74 Second, although the Vietnamese court may have jurisdiction to hear the case, one of the following three alternative conditions is satisfied:75 the defendant argued on the merits without contesting the jurisdiction of the court of origin, the Vietnamese court has not recognised and enforced a judgment from a third country on the same matter, or proceedings were commenced in the court of origin before Vietnamese proceedings were commenced.76 These requirements are all consistent with the provisions of the Judgments Convention.77 However, as for the common law countries, the grounds of indirect jurisdiction under Vietnamese law do not include situations where there is a link between the claim and the court of origin.78 The Philippines appears to be unique amongst the ASEAN Member States because it does not appear to apply a test of indirect jurisdiction as commonly understood in most other countries.79 Instead, the jurisdiction of the court of origin is tested with reference to the procedural rules of the law of the State of origin.80 There is considerable divergence between the jurisdictional filters in Article 5(1) and the grounds of indirect jurisdiction in the various laws. In particular, the Article 5(1) filters are more extensive than those found under the national laws of the ASEAN Member States. On the one hand, the common law countries may view expansion of the grounds of indirect jurisdiction as a necessary trade-off for the benefits of participating in a global convention. After all, the common law countries of the European Union had to make a similar concession for the purposes of the Brussels jurisdictional regime. The filters which deal with a link between the claim and court of origin may also not necessarily be anathema to the common law countries because their own jurisdictional rules allow for a local court to assume jurisdiction on the basis of similar connections. Indeed, the Model Law on the Recognition and Enforcement of Foreign Judgments,81 which is intended to assist Commonwealth member countries to modernise their approach

73 See A Chong (lead author), ‘Jurisdiction’ in A Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020) para v. 74 Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 440(a). Situations for which the Vietnamese courts have exclusive jurisdiction are set out in Art 470. 75 Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 440(b). 76 See Ngọc Bich Du (n 44) paras 28–30. 77 See Arts 6, 7(1)(f) and 7(2). 78 This will probably be less of an issue from the Vietnamese perspective compared with the common law. Given the nature of the three conditions as well as the fact that they are alternative rather than cumulative in nature, it seems likely that a court of origin which satisfies one of the Art 5 jurisdictional filters based on connection between the claim and the State of origin would also be considered to satisfy one of the three alternative conditions set out under Vietnamese law. 79 A Reyes, ‘Conclusion: Towards an Asia of Judgments without Borders’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters, Studies in Private International Law – Asia (Hart Publishing 2019) 319; Chong, ‘Moving towards harmonisation’ (n 31) 42. 80 Aguiling-Pangalangan (n 52) para 10; Arvin A Jo and Jocelyn P Cruz, ‘The Philippines’ in A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters, Studies in Private International Law – Asia (Hart Publishing 2019) 230. cf B Elbalti, ‘Recognition and Enforcement of Foreign Judgments around the World (9) – The Philippines (Part II)’ (2021) 68(6) JCA Journal 47–48 (in Japanese). 81 Office of Civil and Criminal Justice Reform, The Commonwealth, Model Law on the Recognition and Enforcement of Foreign Judgments (Commonwealth Secretariat, 2018), available at: thecommonwealth.org/commonwealth-model-laws. The Model Law was endorsed by the Commonwealth Law Ministers in 2017. See further, Commonwealth Secretariat, Improving the recognition of foreign judgments: model law on the recognition and enforcement of Foreign Judgments (2017) 43 Commonwealth Law Bulletin 545; A Yekini, The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective, Studies in Private International Law (Hart Publishing 2021).

Perspectives for ASEAN  269 on this topic, includes non-traditional bases of jurisdiction based on a connection between the dispute and the State of origin.82 However, the Explanatory text notes the possibility that ‘some will be hesitant about one or more of the additional grounds’.83 Under Cambodian and Lao PDR’s laws, the lack of clarity on what grounds of indirect jurisdiction apply means that it is difficult to gauge whether the Convention’s filters would be acceptable. That said, countries for which the rules of indirect jurisdiction are unclear or silent may potentially take the view that it would be a quick route to developing their law if they were to adopt a set of internationally accepted grounds of jurisdiction. It could be the case that the influence of Article 5(1) of the HCCH 2019 Judgments Convention would extend beyond the foreign judgments field; judgments from a court of a State whose rules on direct jurisdiction are consistent with the jurisdictional filters in the Convention would more likely qualify for recognition or enforcement under the Convention.84 There may be some pressure to reform jurisdictional rules in order fully to enjoy the advantages of being a Contracting Party of the Convention.85 This may then entail a deeper consideration of the cost-benefit analysis of signing up to the Convention.86 As to Article 6, it is in line with the position taken under some laws, such as Vietnamese law, which reserves for itself exclusive jurisdiction in certain circumstances. It is also consistent with the approaches in the common law countries and the Philippines that the court of origin has international jurisdiction over a claim on rights in rem in property if and only if the res is located in the State of origin at the time proceedings are commenced.87

C.  Grounds for Refusal Article 7(1) sets out exhaustive grounds on which a judgment may be refused recognition or enforcement under the Convention.88 Six grounds are set out in Article 7(1) which cover breach of natural justice, fraud, public policy, breach of an agreement for the dispute to be determined in a court of a State other than the State of origin, inconsistency of the judgment with that given by the court of the requested State and inconsistency of the judgment with an earlier judgment given by the court of another State. Article 7(2) deals with a lis pendens situation. The grounds for refusal under Article 7 are discretionary, not mandatory. In other words, a requested court may choose to refuse to recognise or enforce a judgment which falls under one of the grounds listed in Article 7, but is equally free to choose to recognise or enforce the judgment under either the HCCH 2019 Judgments Convention, or under its national law. The non-mandatory nature of Article 7 means that there would be little issue if the grounds for refusal under Article 7 do not have a counterpart under national law. In this situation, the requested State retains the prerogative to recognise or enforce the judgment without breaching the Convention. What may create a problem is if national law provides for a ground for refusal not found under Article 7, given that the Article 7 grounds are exhaustive in nature. This may not pose a big 82 Model Law on the Recognition and Enforcement of Foreign Judgments, cl 5(1). 83 Model Law on the Recognition and Enforcement of Foreign Judgments, Explanatory text, 14. 84 Garcimartín and Saumier (n 55) para 135. 85 Weller (n 63) 281. In relation to this, it should be noted that the Hague Conference on Private International Law has revived work on a convention on jurisdiction. 86 For analogous considerations in the SEE region, see Ilija Rumenov, ch 10 in this volume. 87 N Singh and A Chong (lead authors), ‘In rem Judgments’ in A Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020) para g. 88 See further, Marcos Dotta Salgueiro, ch 4 in this volume.

270  Adeline Chong problem, however, as the public policy ground set out in Article 7(1)(c) will likely cater for this situation where the ASEAN Member States are concerned. Article 7(1)(a) encapsulates the breach of natural justice or lack of due process defence. It seeks to: first, ensure that the defendant was notified of the proceedings in a sufficient time to enable them to prepare for their defence, unless the defendant waived their right to contest notification of the proceedings if the State of origin permitted notification to be contested; and second, that if the notification took place in the requested State, it was conducted in a manner compatible with fundamental principles of the requested State on service of documents. The first sub-ground caters to the interests of the defendant; the second, the interests of the requested State.89 The idea of natural justice encapsulated in the first sub-ground is found across the board in the ASEAN Member States,90 although there is some disparity as the test for appropriate notification is ‘factual’ under the Convention,91 whereas the ASEAN Member States variously refer to either their own laws92 or the law of the State of origin.93 In relation to the second sub-ground, the Philippines and Vietnam have each enacted the HCCH 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters into their laws. Fraud, which is dealt with under Article 7(1)(b), is an independent ground for refusal under the common law countries of ASEAN and the Philippines. It is possible that fraud would fit under provisions dealing with violations of public order, morals or local laws in some of the civil law countries of ASEAN.94 However, as mentioned, the absence of fraud as a ground for refusal under national law is not a concern given that the Article 7(1) grounds are discretionary, not mandatory, in nature. What is more pertinent is whether ‘fraud’ under the Convention would capture the various approaches towards fraud. These vary between adoption of the maxim that (all forms of) fraud unravels everything,95 adopting different rules depending on the type of fraud involved,96 or only allowing extrinsic fraud to be raised as a ground for refusal.97 The Convention only refers to ‘fraud’, which is wide enough to encompass all iterations of the fraud principle in the ASEAN Member States. Having said that, one must bear in mind that each Contracting Party ought to interpret and apply the Convention in a uniform manner,98 insofar as that can be achieved. It may be that over time, the various approaches towards fraud will coalesce into a single consistent approach. All of the ASEAN Member States would refuse to recognise or enforce a foreign judgment on the ground that it is contrary to its public policy. The phrase ‘public policy’ is familiarly used in this context in each of Brunei, Malaysia, Singapore and the Philippines.99 The other countries refer to issues which clearly fall under the rubric of ‘public policy’ even if that phrase is not expressly 89 Garcimartín and Saumier (n 55) para 249. 90 See generally, Yu Un Oppusunggu (lead author), ‘Due Process’ in A Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020). 91 Garcimartín and Saumier (n 55) para 250. 92 See the following country reports in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia: Ong, ‘Brunei’, paras 34–37; Choong, ‘Malaysia’, para 17 read with para 24; A Chong, ‘Singapore’, para 21. 93 Aguiling-Pangalangan (n 52) para 24; Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 439(3). 94 See the following country reports in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia: Bun, ‘Cambodia’, paras 13–14; Chanthala and Santivong, ‘Lao’, para 119, fn 17. 95 Ong, ‘Brunei’ (n 12) para 32. 96 Chong, ‘Singapore’ (n 12) para 19. See Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515 (CA Singapore). 97 Aguiling-Pangalangan (n 52) para 17. 98 Art 20 HCCH 2019 Judgments Convention. 99 eg, Reciprocal Enforcement of Foreign Judgments Act (Cap 177, 2000 rev edn) (Brunei) s 5(1)(a)(v); Reciprocal Enforcement of Judgments Act 1958 (Act 99, 1972 rev edn) (Malaysia) s 5(1)(a)(v); Reciprocal Enforcement of Foreign Judgments Act 1959 (2020 rev edn) (Singapore) s 5(1)(a)(v); Civil Code of the Philippines (Republic Act No 386) (1949) Art 17.

Perspectives for ASEAN  271 used; for example, the judgment is in breach of any law in force in the requested State,100 proceedings leading up to the judgment were founded on an incorrect view of international law,101 the judgment is against public order,102 morals or is against basic principles of law of the requested State.103 The express articulation in Article 7(1)(c) that public policy includes ‘situations involving infringements of security or sovereignty of that State’ would offer added assurance to States, such as Lao PDR,104 whose Civil Procedure Code specifies a similar ground for refusal. Overall, as the content of public policy under the Convention is for each State to determine,105 there should be little issue of Article 7(1)(c) being acceptable to the ASEAN Member States. However, countries whose laws permit a more expansive application of the public policy ground for refusal under local rules have to bear in mind the high threshold of ‘manifest incompatibility’ which is provided under the HCCH 2019 Judgments Convention; some adjustments may be necessary.106 Article 7(1)(c) would also enable the court addressed to refuse enforcement on national grounds which are not expressly articulated in the Convention, provided, again, that the high threshold of ‘manifest incompatibility’ with the public policy of the requested State is met. For example, the Lao PDR court will not recognise or enforce a default judgment made against a defendant who did not participate in the proceedings.107 If due notice was given to the defendant, Article 7(1)(a) cannot be invoked, but Article 7(1)(c) may instead be relied on insofar as this is permitted by the Convention.108 Article 7(1)(d) covers both exclusive and non-exclusive choice of court agreements which exclude the jurisdiction of the court of origin.109 While few of the countries have a ground for refusal akin to that found in Article 7(1)(d), it is aligned with the respect that is accorded to party autonomy in relation to contractual issues in the ASEAN Member States.110 Where the judgment conflicts with one rendered by a court of the requested State, Article 7(1)(e) allows for a refusal to recognise or enforce the judgment. Where the judgment conflicts with an earlier judgment given by a court of another State between the same parties and on the same subject matter, the court addressed may refuse to recognise or enforce the later judgment.111 The preference for a local judgment, irrespective of whether it was rendered before or after the foreign judgment, is followed under Singapore common law112 and Vietnamese law.113 The preference for 100 Code of Civil Procedure (1908) (Myanmar) s 13(f). See also, Memorandum of Guidance as to the Union of Myanmar and the Supreme Court of the Republic of Singapore (signed 10 February 2020) para 18(f). 101 Code of Civil Procedure (1908) (Myanmar) s 13(c). See also, Memorandum of Guidance as to the Union of Myanmar and the Supreme Court of the Republic of Singapore, para 18(c). 102 eg, Civil Procedure Code (2006) (Cambodia) Art 199(c); Civil Code of the Philippines (Republic Act No 386) (1949) Art 17. 103 eg, Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 439(8). 104 Amended Law on Civil Procedure (No 13/NA) (4 July 2012) (Lao PDR) Art 362. 105 Garcimartín and Saumier (n 55) para 264. 106 See Thura (n 15) 217–18 on the broad scope of the public policy ground for refusal under the law of Myanmar. 107 Amended Law on Civil Procedure (No 13/NA) (Lao PDR) (4 July 2012) Art 366; Chanthala and Santivong (n 34) paras 5 and 8. 108 Art 12(1)(b) makes it clear that default judgments fall within the scope of the Convention. Given this, the question which arises is whether a Contracting Party may choose to exclude foreign default judgments by invoking Art 7(1)(c). 109 Garcimartín and Saumier (n 55) para 269. 110 eg, see the following country reports in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia: Bun, ‘Cambodia’, paras 9–11; Minn, ‘Myanmar’, para 2; Aguiling-Pangalangan, ‘The Philippines’, para 40. The Asian Principles for the Recognition and Enforcement of Foreign Judgments suggests that a choice of court agreement concluded between parties to the dispute which designates the court of origin should be considered to confer international jurisdiction on that court. See A Chong (lead author), ‘Jurisdiction of the Court’ in A Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020) para z. 111 Art 7(1)(f). 112 Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck) [2021] 1 SLR 1102 (CA Singapore), [36]. 113 Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 439(5).

272  Adeline Chong an earlier judgment, whether local or another foreign judgment which satisfies the requirements for recognition, can be found in the statutory enforcement schemes of Brunei,114 Malaysia115 and Singapore.116 Where a foreign judgment has been recognised and enforced by a Vietnamese court, another foreign judgment from a court of another country which conflicts with it cannot be recognised or enforced.117 The laws of the other ASEAN Member States do not deal with the issue of conflicting judgments.118 The overriding preference for a local judgment irrespective of timing of the judgment preserves the internal coherence of a local system. The preference for an earlier foreign judgment over a later foreign judgment, both of which satisfy the requirements for recognition, promotes respect for the principle of res judicata. It is unlikely for either Article 7(1)(e) or (f) to raise any concern in the ASEAN Member States. The idea of the primacy of a local judgment also pervades Article 7(2). This allows for the postponement or refusal of the recognition or enforcement of a judgment if proceedings between the same parties on the same subject matter are pending before a court of the requested State if (a) the court of the requested State was seised before the court of origin; and (b) there is a close connection between the dispute and the requested State. Generally, under the common law, a foreign judgment may give rise to a res judicata which would prevent the parties bound by the judgment from pursuing the same cause of action or raising the same issue before another court.119 Article 7(2) therefore may be of little import to the common law countries. The Vietnamese Civil Procedure Code, however, mandates that a foreign judgment will be refused recognition and enforcement in circumstances which are in line with Article 7(2).120

D. Reciprocity As has been detailed above,121 reciprocity is a precondition to foreign judgments recognition and enforcement in the civil law countries of ASEAN. The statutory enforcement regimes of the common law countries which are based on the UK Act similarly require reciprocity: a country will only be gazetted under these statutes upon the relevant public official being satisfied that proof of ‘reciprocal treatment’ will be meted out to the enacting country’s judgments. However, reciprocity is not a precondition under the common law route. Naturally, reciprocity will be satisfied between all the Contracting Parties to the HCCH 2019 Judgments Convention, provided that Article 29 is not used. Article 29 is an opt-out provision.122 114 Reciprocal Enforcement of Foreign Judgments Act (Cap 177, 2000 rev edn) (Brunei) s 5(1)(b). 115 Reciprocal Enforcement of Judgments Act 1958 (Act 99, 1972 rev edn) (Malaysia) s 5(1)(b). 116 Reciprocal Enforcement of Foreign Judgments Act 1959 (2020 rev edn) (Singapore) s 5(1)(b). The same position is followed under the common law: Merck Sharp & Dohme Corp (formerly known as Merck & Co, Inc) v Merck KGaA (formerly known as E Merck) [2021] 1 SLR 1102 (CA Singapore), [36]. 117 Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 439(5). 118 See generally, C Ong (lead author), ‘Inconsistent Judgments’ in A Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020). 119 See, eg, Loo Chooi Ting v United Overseas Bank Ltd [2015] 8 CLJ 287 (CA Malaysia). 120 See Civil Procedure Code (No 92/2015/QH13) (Vietnam) Art 439(5) which is in line with Art 7(2)(a) of the Convention. In relation to Art 7(2)(b) of the Convention, Art 469(1) of the Vietnamese Civil Procedure Code generally accords jurisdiction to the courts of Vietnam in civil cases involving foreign elements only if there is a substantial connection with Vietnam. See Ngọc Bich Du (n 44) para 30. For the position under some of Vietnam’s bilateral agreements, as well as the position under Lao’s bilateral agreement with China, see Ong, ‘Inconsistent Judgments’ (n 118) paras u–w. 121 Section II.B. 122 See João Ribeiro-Bidaoui and Cristina M Mariottini, ch 5 in this volume.

Perspectives for ASEAN  273 It allows a Contracting Party to avoid establishing treaty relations with another Contracting Party if the former informs the depositary to that effect within a certain time limit. Article 29 alleviates the concern that some States may have on opening its doors to judgments from all Contracting Parties to the Convention.

E.  Non-Monetary Judgments The civil law123 and mixed legal system124 countries of ASEAN readily enforce non-monetary judgments. The same is not true of the common law countries: only Singapore enforces nonmonetary judgments under its statutory enforcement regimes.125 The common law position is largely due to historical reasons as the traditional procedure for enforcing a foreign judgment was an action in indebitatus assumpsit.126 Yet much the same effect as direct enforcement of a non-monetary judgment can be achieved in the common law countries by commencing fresh local proceedings seeking similar relief which was granted by the foreign court and raising the foreign non-monetary judgment as a res judicata in the local proceedings.127 This suggests that the inclusion of non-monetary judgments in the Convention’s scope will not pose a barrier to its ratification by the common law countries,128 all the more so as the Convention does not require the requested court to grant relief that is unknown under its law.129

F. Conclusion Apart from Indonesia and Thailand which do not generally enforce foreign judgments, the Convention’s provisions dealing with the types of judgments which are recognisable or enforceable and the grounds for refusal are largely in line with national rules on foreign judgments in the ASEAN Member States. What may pose more of a problem is Article 5. The jurisdictional filters in the Convention are notably more extensive than those found under national laws. That being the case, the court addressed may be required to recognise or enforce a judgment under the Convention in circumstances where it would not under national law. Whether an ASEAN Member State considers this to be an acceptable expansion of its laws is an open question.

IV.  Convention Rules Applied to Judgments from the ASEAN Member States The previous section attempted to assess how likely the HCCH 2019 Judgments Convention’s rules would be considered palatable to the ASEAN Member States in terms of having to enforce

123 See the following country reports in A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia: Bun, ‘Cambodia’, para 33; Chantala and Santivong, ‘Lao’, para 4; Ngọc Bich Du, ‘Socialist Republic of Vietnam’, para 20. 124 Aguiling-Pangalangan (n 52) para 38. 125 Reciprocal Enforcement of Foreign Judgments Act 1959 (2020 rev edn) (Singapore) ss 2(1) and 4(4)(a); Choice of Court Agreements Act 2016 (2020 rev edn) (Singapore) s 2(1). 126 eg, Walker v Witter (1778) 99 ER 1 (Douglas J). 127 See further, Chong, ‘Moving towards harmonisation’ (n 31) 57–60. 128 See also Model Law on the Recognition and Enforcement of Foreign Judgments, cls 2(1), 15 and 16. 129 Garcimartín and Saumier (n 55) para 118.

274  Adeline Chong a foreign judgment. However, it is reasonable to assume that countries which are considering whether to sign up to the Convention would also have in mind the extent to which its own judgments can circulate under the Convention. Countries would rarely, if ever, only have the altruistic desire to improve the portability of judgments by enhancing the situations in which they would themselves recognise or enforce foreign judgments. In this regard, it should be noted that judicial standards vary amongst the ASEAN Member States. According to data compiled by the World Economic Forum for its Global Competitiveness Report,130 around half of the ASEAN Member States ranked in the bottom half out of 137 countries for judicial independence in 2017.131 The World Justice Project Rule of Law Index® 2020 lists only three of the ASEAN Member States in the top half out of a survey of 128 countries.132 The US Department of State Investment Climate Statements 2021 report unfavourably on the impartiality and lack of corruption of the judiciary in a number of the ASEAN Member States.133 There has also been political turmoil in recent years in a few of the ASEAN Member States,134 which have had knock-on effects on the functioning and external perception of the affected countries’ judicial systems. Any systemic defects in the judicial system of the State of origin would of course increase the likelihood that the court addressed would refuse to recognise or enforce the judgment of the court of origin. A likely basis for refusal would be the ‘public policy’ ground,135 as that is openended enough to capture issues with the integrity of a foreign judicial system. If the concerns about a particular State of origin are especially severe, a Contracting Party may decide to invoke the opt-out mechanism in Article 29 to indicate that it will not recognise or enforce judgments from courts of that State under the Convention. Those ASEAN Member States whose judicial systems are perceived to be lacking by international standards run the risk that their judgments will be refused recognition or enforcement under the Convention. Of course, the same result may ensue even outside the Convention, but from that ASEAN country’s point of view, there would be little advantage in signing up to the Convention. Further, it may also not want to risk the embarrassment of another Contracting Party refusing to establish treaty relations with it pursuant to Article 29. For these countries, deciding to sign up to the Convention will be a more fraught affair, entailing consideration of factors beyond the palatability of the Convention’s rules vis-a-vis enforcing a foreign judgment. If efforts were made to improve the legal system, however, it is possible that a particular country may consider signing up to the Convention as a means of signalling its commitment to higher judicial standards and the upholding of the rule of law.

130 See: reports.weforum.org/global-competitiveness-index-2017-2018/competitiveness-rankings/#series=EOSQ144. 131 Namely, Lao PDR (69), Vietnam (84), the Philippines (88), Cambodia (122). Myanmar was last featured in the 2015– 016 Global Competitiveness Report and ranked 121: reports.weforum.org/global-competitiveness-report-2015-2016/ competitiveness-rankings/. 132 See: worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020. These are Singapore (12), Malaysia (47) and Indonesia (59). Notably, Cambodia is ranked 127 in this index. Brunei and Lao PDR are not included in the index. 133 See: www.state.gov/reports/2021-investment-climate-statements/, in particular the country reports for Burma (Myanmar), Cambodia, Indonesia, Lao PDR, the Philippines and Vietnam. 134 eg, Myanmar and Thailand are currently ruled by military junta-led governments. 135 Art 7(1)(c).

Perspectives for ASEAN  275

V.  Options for the ASEAN Member States and Influence of Non-Legal Factors Assuming that issues with the substantive provisions of the HCCH 2019 Judgments Convention and the treatment of outgoing ASEAN judgments can be overcome, the next issue is to consider the possible routes by which the Convention could take effect in ASEAN. Four options are discussed in this section. The impetus to enhance the foreign judgments regime will vary across the region and affects the viability of each option. First, however, it would be useful to have a brief understanding of ASEAN and how it operates. Interestingly, ASEAN was set up by means of a political document – the 1967 Bangkok Declaration – and was initially intended to operate as a bulwark against war in the region by the five original founding States.136 Its current make-up of 10 Member States and shift in emphasis on economic development only came later.137 The initial mechanism by which ASEAN operated was the ‘ASEAN Way’, an informal mode of decision-making based on consultation and consensus.138 The limitations of the ASEAN Way and the greater focus on economic development and integration lead to the adoption of the ASEAN Charter in 2007. The Charter came into force on 15 December 2008 and conferred legal personality on ASEAN as an ‘inter-governmental organisation’.139

A.  ASEAN to become a Contracting Party to the Convention as an REIO Articles 26 and 27 of the HCCH 2019 Judgments Convention allow a Regional Economic Integration Organisation (REIO) to become a Contracting Party to the Convention. Article 3(2) of the Statute of the Hague Conference on Private International Law,140 which is the ‘constitution’ of the HCCH, provides that an REIO must be one constituted solely by sovereign states, and to which its Member States have transferred competence over a range of matters within the purview of the Conference, including the authority to make decisions binding on its Member States in respect of those matters.

Article 41(7) of the ASEAN Charter confers capacity on ASEAN to ‘conclude agreements with countries or sub-regional, regional and international organisations and institutions’. However, there has been no transfer of competence by the Member States to ASEAN and each Member State retains its overall autonomy and sovereignty over private international law matters. Further, ASEAN lacks robust institutional infrastructure and the ASEAN Secretariat wields relatively

136 Indonesia, Malaysia, the Philippines, Singapore and Thailand formed the precursor to ASEAN, the Association of Southeast Asia, on 21 July 1961. 137 See L Leviter, ‘The ASEAN Charter: ASEAN Failure or Member Failure?’ (2010) 43 New York University Journal of International Law and Polities 159. 138 ibid, 167–71. 139 ASEAN Charter, Art 3. 140 Art 3 deals with the issue of an REIO becoming a Member of the HCCH. Membership, however, is not necessary to be a signatory to a Hague Convention. The Hague Statute also does not insist that all Members of the REIO must be Members of the HCCH: A Schulz, ‘The accession of the European Community to the Hague Conference on Private International Law’ (2007) 56 ICLQ 939, 945. Currently Malaysia, the Philippines, Singapore, Thailand and Vietnam are Members of the HCCH.

276  Adeline Chong weak powers over the Member States.141 Each Member State would have to agree to accede to a treaty before ASEAN can act on the basis of Article 41(7)142 as consultation and consensus remain the primary mode of decision-making in ASEAN.143 Thus, ASEAN is currently not an REIO under the HCCH or other traditional definitions of the term.144 It may be that the Member States eventually decide to bestow power on ASEAN to enter into agreements in private international law which are binding on all of them. This would enable ASEAN to join the Hague Conference as an REIO, and indeed, such a move has been observed to be in line with the goals set out in the AEC Blueprint.145 However, given the entrenched consultative and consensual mode of operation within ASEAN and ASEAN’s limited infrastructure, it may be some time before this can be achieved.

B.  The ASEAN Member States to Collectively Agree to Join the Convention in their Individual Capacities While ASEAN in its own right has concluded some agreements,146 the preferred route in practice is for significant agreements to be concluded by the respective ASEAN governments in their individual capacities but identified as a member of ASEAN.147 For example, the Preamble to the RCEP Agreement refers to ‘the Heads of State or Government of the Member States of the Association of Southeast Asian Nations’. The agreement of each Member State is required and this collective stance serves to satisfy the principle of ‘the centrality of ASEAN in external political, economic, social and cultural relations’.148 The collective stance also implies that each ASEAN Member State owes an obligation to ASEAN and its fellow Member States to take further steps to implement the agreement.149 This is of course advantageous in making sure that an initial signing is followed by the concrete step of ratification. This collective agreement option concluded with an external party, however, does not appear to be available under the HCCH 2019 Judgments Convention. Nevertheless, it is of course possible for the Member States of ASEAN to agree between themselves that each Member State should join the Convention on an individual basis. This route can be bolstered by reference to Article 41(4) of the ASEAN Charter which provides: ‘In the conduct of external relations of ASEAN, Member States shall, on the basis of unity and solidarity, coordinate and endeavour to develop common positions and pursue joint actions’. If endeavour comes to fruition in relation to the Convention, this ought similarly to impose an obligation on each ASEAN Member State to take steps to implement the Convention in line with Article 5(2) of the Charter which reads: ‘Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership’.

141 I Deinla, The Development of the Rule of Law in ASEAN: The State and Regional Integration (Cambridge University Press, 2017) 199. 142 A Reyes, ‘ASEAN and the Hague Conventions’ (2014) 22 Asia Pacific Law Review 25, 29. 143 ASEAN Charter, Art 20(1). 144 M Cremona et al, ASEAN’s External Agreements: Law, Practice and the Quest for Collective Action (Cambridge University Press, 2015) 31. 145 Reyes, ‘ASEAN and the Hague Conventions’ (n 142) 44. 146 These tend to be less important or non-binding instruments such as Memoranda of Understanding. See Cremona et al (n 144) 27–29. 147 See, generally, Cremona et al (n 144). 148 ASEAN Charter, Art 2(2)(m). See Cremona et al (n 144) 30. 149 Cremona et al (n 144) 30.

Perspectives for ASEAN  277

C.  The ASEAN Member States to Join the Convention on an Individual Basis One or more of the ASEAN Member States could make the individual decision to join the HCCH 2019 Judgments Convention. This is probably the most likely outcome rather than a collective agreement to do so. There is diversity in ASEAN in terms of maturity of legal systems, economic development and political stability. These factors affect how high up the agenda dealing with the recognition and enforcement of foreign judgments is for a particular country, and how comfortable a country may be with having a judgment of its court scrutinised pursuant to the Convention’s provisions. The Convention would naturally attract greater enthusiasm amongst the more developed countries which are likely to be net judgment exporter countries. For example, Singapore enacted the HCCH 2005 Choice of Court Convention into its law in 2016.150 This decision was taken primarily with an eye to enhancing the enforceability of judgments of the Singapore International Commercial Court (SICC), which was established in 2015 to attract international litigation to Singapore’s shores. The HCCH 2005 Choice of Court Convention however only covers instances where there is an exclusive choice of court agreement for a court in Singapore. Enacting the HCCH 2019 Judgments Convention would cover other routes by which a dispute is litigated before the SICC, namely where there is a non-exclusive choice of court agreement for the SICC151 or where the case has been transferred to the SICC by the General Division of the High Court of Singapore.152 The Singapore Court has also concluded a number of Memoranda of Guidance on the enforcement of money judgments with other courts.153 These memoranda are not legally binding but serve as clarifications of each country’s laws as well as provide a more intangible ‘signalling’ function of the enforceability of its judgments abroad.154 The point is that Singapore is making concerted efforts to ensure the enforceability of its judgments abroad and it would be unsurprising if the decision is taken to sign up to the Convention. The countries with less developed legal systems and economies will be net judgment importer countries. These countries also generally have more restrictive rules on the recognition and enforcement of foreign judgments and thus may be more hesitant to sign up to an international convention which would dramatically alter their existing rules.155 This is not to say that enacting the Convention is not also advantageous for net judgment importer countries: the Convention would add clarity on how foreign judgments will be dealt with in countries where such clarity is currently lacking and consequently build confidence in foreign entities to do business with local entities.156 It remains to be seen whether the plethora of international trade agreements signed 150 Choice of Court Agreements Act 2016 (2020 rev edn). 151 Art 5(1)(m). 152 Although the SICC was established to attract cases with little connection to Singapore, in a transfer situation it is very likely for a connection with Singapore to be established. The General Division can generally assume jurisdiction only if there is a requisite nexus to Singapore (see, eg, Rules of Court 2021, Order 8 r1(1) and Supreme Court Practice Directions 2021 (to be read with Rules of Court 2021) para 63). Thus, one or more of the jurisdictional filters in Art 5(1) of the Convention ought to be satisfied. Unlike the HCCCA, the Convention understandably does not contain a provision dealing with judgments resulting from a transfer from one court to another court within the same country. 153 The list of concluded memoranda can be found at: www.judiciary.gov.sg/who-we-are/enforcement-money-judgmentssingapore-foreign-courts. 154 G Cuniberti, ‘Signalling the Enforceability of the Forum’s Judgments Abroad’ (2020) 1 Rivista di diritto internazionale privato e processuale 33, 35. 155 M Pertegas, ‘The 2019 Judgments Convention: the Road Ahead’ Proceedings of the 16th PIL Regional Conference (Tirana 2019) para 27, available at: ssrn.com/abstract=3715822. 156 Chong, ‘Moving towards harmonisation’ (n 31) 61–62.

278  Adeline Chong recently will shift the reform of recognition and enforcement rules higher up the totem pole of priority for these countries.

D.  Use the Convention as a Basis for an ASEAN-Specific Convention An alternative is that the ASEAN Member States may decide to replicate the Convention at the regional level, by concluding an ASEAN or ASEAN plus major trader partners multilateral agreement.157 It would be more ‘cost effective’158 to adopt the rules of the Convention, which has been carefully negotiated on a global level amongst countries with different legal traditions, much like ASEAN, rather than attempt to build an ASEAN-specific Convention from the ground up. Instead of a replication, it is technically possible for the ASEAN Member States to join the Convention and use Article 29 to limit treaty relations within ASEAN. This could be a steppingstone towards a gradual opening up of treaty relations under the Convention to non-ASEAN Participating Countries. The opt-out nature of Article 29 however may discourage this option. Further, use of the Convention as a base, rather than joining the Convention, means that it would be possible for some modifications to the rules of the Convention to be made to cater specifically to the ASEAN context. For countries with restrictive foreign judgment rules, a smaller scale multilateral agreement modified from the rules of the Convention amongst regional allies and major trade partners may provide a more palatable and gentler path into gradually liberalising its foreign judgment rules.

VI. Conclusion The HCCH 2019 Judgments Convention would increase the free circulation of judgments on a global level. Confidence that a judgment procured in the court of one country can be enforced against the assets of the judgment debtor in another country encourages cross-border trade. Acceding to the Convention is clearly aligned with the various economic developments to greater integration of ASEAN and the ASEAN Member States into the global economy such as the AEC, RCEP, CPTPP and BRI. Even the countries with currently restrictive rules on foreign judgments have grounds to reconsider their positions. While the Convention’s list of jurisdictional filters is much more comprehensive than can be found under the laws of the ASEAN Member States, many of the other main rules are in line with the existing rules. It can be argued that the disparity between existing national laws and the Convention’s provisions will not be deal-breakers to giving legal effect to the Convention in the region. That said, there is divergence in terms of legal development, judicial quality and political stability in ASEAN. This means that priorities in relation to enhancing the recognition and enforcement of foreign judgments vary in the region. Realistically, ASEAN itself lacks the authority and infrastructure to drive any development in this regard, at least in the immediate future.

157 An ASEAN-wide Convention on foreign judgments has been suggested previously: P Koh, ‘Foreign Judgments in ASEAN – A Proposal’ (1996) 45 International & Comparative Law Quarterly 844; C Ong, Cross-border Litigation within ASEAN: The Prospects for Harmonisation of Civil and Commercial Litigation (Kluwer Law International 1997). 158 Reyes, ‘ASEAN and the Hague Conventions’ (n 142) 42.

Perspectives for ASEAN  279 If the Convention were to have effect in the ASEAN Member States, it is most probable that this would happen through the decisions of individual Member States to accede to the Convention, rather than an ASEAN-wide collective decision. That the Convention may end up having a patchwork effect in ASEAN is disappointing, considering the benefits which the Convention could bring, not just to individual Member States, but to ASEAN as a whole.

280

13 Prospects for Africa ABUBAKRI YEKINI* AND CHUKWUMA OKOLI**

I. Introduction The recognition and enforcement of foreign judgments is not a hot topic among many African politicians. It is given attention by a few African academics.1 This is because many African politicians attach little or no value to the significant role of private international law in Africa.2 Important issues for discussion among African politicians have focused on political strife, wars, developmental issues and the need for sustainable growth and development in Africa through massive foreign investment. The progressive development of private international law in Africa is one of the routes to sustainable growth and development and the policymaker at national, regional and continental levels seem to ignore this important fact. This point is easily proved by a peripheral scrutiny of the recently adopted Agreement Establishing the African Continental Free Trade Area (AfCFTA) and its protocols.3 Indeed, the African Union’s 2063 Agenda4 for an integrated and prosperous Africa is becoming a reality as trading activities commence under AfCFTA; the Agreement and its protocols are conspicuously silent on the harmonisation of the divergent national laws of the 55 Member States.5 The race to economic prosperity in Africa can be boosted by providing a legal and business environment that support trade and investment in all ramifications, especially through the * Lecturer in Law (Conflict of Laws), University of Manchester, and Barrister and Solicitor of the Supreme Court of Nigeria. ** Lecturer in Commercial Conflict of Laws at the University of Birmingham, and Barrister and Solicitor of the Supreme Court of Nigeria, LLM with Distinction (International Commercial Law) University of Aberdeen, PhD (Private International Law) University of Luxembourg. 1 P Okoli, Promoting Foreign Judgments: Lessons in Legal Convergence from South Africa and Nigeria (Wolters Kluwer 2019); AJ Moran and AJ Kennedy, Commercial Litigation in Anglophone Africa: The law relating to civil jurisdiction, enforcement of foreign judgments, and interim remedies (Juta 2018); M Rossouw, The Harmonisation of Rules on the Recognition and Enforcement of Foreign Judgments in Southern African Customs Union (Pretoria University Law Press 2016); RF Oppong, ‘Recognition and Enforcement of Foreign Judgments in Commonwealth African Countries (2013/14) 15 Yearbook of Private International Law 365; PN Okoli, ‘The fragmentation of (mutual) trust in Commonwealth Africa – a foreign judgments perspective’ (2020) 16 Journal of Private International Law 519. See also A Yekini, The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective (Hart Publishing 2021). 2 See generally, R Oppong, Legal Aspects of Economic Integration in Africa (Cambridge University Press, 2011). 3 The text of the Agreement is available at: au.int/en/treaties/agreement-establishing-african-continental-free-trade-area. 4 See African Union Commission, Agenda 2063: The Africa We Want (African Union Commission 2015). The text of the Agenda is also available at: au.int/sites/default/files/documents/36204-doc-agenda2063_popular_version_en.pdf. 5 The status table is available at: au.int/sites/default/files/treaties/36437-sl-AGREEMENT_ESTABLISHING_THE_ AFRICAN_CONTINENTAL_FREE_TRADE_AREA_1.pdf.

282  Abubakri Yekini and Chukwuma Okoli reduction or elimination of legal and investment risks.6 Investors are potentially interested in climes that would yield higher returns on their investments and that interest will be driven by the extent to which the legal and business environments minimise investment risks. The founders of the European common market understood this point clearly when they provided in Article 220 of the EEC Treaty that the Member States should implement frameworks that would simplify the formalities on recognition and enforcement of judgments thereby prioritising the protection of acquired rights, legal certainty and predictability. With the recent enactment of AfCFTA, the significance of the recognition and enforcement of foreign judgments in Africa has come to the fore.7 If a judgment is given in Morocco or Russia, and the judgment creditor intends to enforce it in an African country (or countries), what mechanisms can be utilised to enforce such a judgment promptly? How effective and efficient are the mechanisms? In the event that those mechanisms are not effective, or judgment creditors are not able to enforce foreign judgments, what effect would this have on doing business in Africa? Indeed, the significance of recognition and enforcement of foreign judgments in Africa cannot be overemphasised. As one scholar observed elsewhere: If a judgment for the payment of damages is not recognised in the state where the defendant’s assets are located, the plaintiff has no remedy. Thus, recognition and enforcement is about managing individual and corporate behaviour efficiently through the resolution of legal disputes. Recognition avoids the (private) costs of re-litigation of the dispute in the state requested to recognise, although there are bound to be public cost implications involved in funding the court system that handles the litigation.8

The central argument of this chapter is that a modern and sophisticated regime for the recognition and enforcement of foreign judgments in Africa has the potential to create economic prosperity for African countries. It would make African countries an attractive hub not only for business, but for international commercial litigation. This would in turn bring foreign investment, sustainable growth and development to Africa and reduce the incentive for migration to Europe, the United States, Australia and other developed countries. This chapter considers the prospects of the HCCH 2019 Judgments Convention in Africa. The second section will provide a brief history of judgment recognition systems in Africa. It will be submitted that many African countries were colonised by some European power, and this has led to a diverse legal culture and different approaches to the recognition and enforcement of foreign judgments. The third section identifies the gaps in African jurisprudence on a multilateral approach to the enforcement of foreign judgments and discusses how these fit within the scheme of AfCFTA. It will be shown that the current judgments schemes are not as liberal as a multilateral scheme; the multilateral scheme is more apposite to the goals of AfCFTA and Africa’s goals of economic prosperity. The fourth section discusses the prospects for a multilateral convention on the recognition and enforcement of foreign judgments in Africa and will submit that this could be a strong basis on which African countries should liberalise their approach. In other words, the 6 R Fentiman, International Commercial Litigation, 2nd edn (Oxford University Press 2015) 3–7. 7 See RF Oppong, ‘AfCFTA and International Commercial Dispute Resolution – A Private International Law (Conflict of Laws) Perspective’, available at: www.afronomicslaw.org/index.php/category/analysis/afcfta-and-internationalcommercial-dispute-resolution-private-international-law; OA Uka, ‘Cross Border Dispute Resolution under AfCFTA: A Call for the Establishment of a Pan African Harmonised Private International Legal Regime to Actualise Agenda 2063’, available at: conflictoflaws.net/2020/cross-border-dispute-resolution-under-afcfta-a-call-for-the-establishment-of-apan-african-harmonised-private-international-legal-regime-to-actualise-agenda-2063/; A Yekini, ‘Nigeria and AfCFTA: What role has Private International Law to Play?’ in: Conflictoflaws.net (18 November 2020). 8 C Roodt, ‘Recognition and enforcement of foreign judgments: still a Hobson’s choice among competing theories?’ (2005) 38 Comparative and International Law Journal of Southern Africa 15, 16.

Prospects for Africa  283 HCCH 2019 Judgments Convention could thus be one of the multilateral instruments that will enhance the economic integration goals of AfCFTA.

II.  Judgments Recognition Systems in Africa Before the Berlin Conference of 1884/85 wherein the scramble for the African territories was formalised by the imperial powers, the African continent was divided into several kingdoms that were governed by native law and customs.9 While cross-border trading activities were prominent within and beyond the kingdoms,10 not much was known in history about the resolution of disputes arising from such cross-border trade and commerce. However, there is sufficient information in the literature about how the forum resolved disputes between foreign subjects, primarily the ‘whites’ and indigenous people.11 Despite the many drawbacks of colonialism, it arguably brought some development to Africa. It expanded the trade channels between the African kingdoms and the Western countries, particularly, Europe.12 After the end of the slave trade, Western powers transitioned to commodity trade leading to a massive inflow of companies and investment from the global north around the late nineteenth century and early twentieth century.13 The revenues from trade and investment were used in providing some public infrastructure and other developmental projects such as schools, roads and railways to different parts of Africa. The development was extended to the legal system through the introduction of European-style justice administration systems in Africa. Various legal systems emerged in Africa based on whichever imperialist power exercised dominion over which territory. These imperialists imported their legal systems and superimposed them on the indigenous justice systems.14 At independence, most African countries simply adopted the well-entrenched colonial legal systems and traditions with few modifications to accommodate local customs.15 For instance, the British government introduced the common law system in the British colonies and protectorates. These colonies can be loosely referred to today as the ‘common law jurisdictions’ in Africa. They include Nigeria, Ghana, Kenya, South Africa, Botswana and Zambia amongst others. These countries share a common heritage in language16 legal culture17 and some geographical proximity. 9 IO Ojo and EO Ekhator, ‘Precolonial Legal System in Africa: An Assessment of Indigenous Laws of Benin before 1897’ (2020) 5 Umewaen: Journal of Benin and Edo Studies 38. 10 See AO Akrong, ‘Trade, Routes Trade, and Commerce in Pre-colonial Africa’ in NN Wane (ed), Gender, Democracy and Institutional Development in Africa (Springer 2019); MC Nwankwo and E Ekhator, ‘Pre-colonial Trade in Africa and International Law: Setting a Research Agenda’ Afronomicslaw (December 2021), available at: www.afronomicslaw. org/category/analysis/pre-colonial-trade-africa-and-international-law-setting-research-agenda; D Eltis and LC Jennings, ‘Trade between Western Africa and the Atlantic World in the Pre-Colonial Era’ (1988) 93 American Historical Review 936. 11 See generally, O Adewoye, The Judicial System in Southern Nigeria, 1854–1954: Law and justice in a dependency (Humanities Press 1977); M Berinzon and RC Briggs, ‘Legal Families Without the Laws’ (2016) 64 American Journal of Comparative Law 329; SF Joireman, ‘Inherited Legal Systems and Effective Rule of Law: Africa and the Colonial Legacy’ (2001) 39 Journal of Modern African Studies 571, 576–81. 12 B Athow and RG Blanton, ‘Colonial Style and Colonial Legacies: Trade Patterns in British and French Africa’ (2002) 19 Journal of Third World Studies 219; JD Settles, ‘The Impact of Colonialism on African Economic Development’, Chancellor’s Honors Program Projects, 1996, available at: trace.tennessee.edu/utk_chanhonoproj/182. 13 E Frankema, ‘How Africa’s colonial history affects its development’ (2015), available at: www.weforum.org/ agenda/2015/07/how-africas-colonial-history-affects-its-development/. 14 See Joireman (n 11) 571, 576. 15 Joireman, ibid; Berinzon and Briggs (n 11) 345. 16 English language as an official language. 17 Generally, the common law of England, the doctrines of equity and in some cases, English statutes of general application.

284  Abubakri Yekini and Chukwuma Okoli France adopted the policy of assimilation for its colonies in Africa.18 This included the introduction of French legal culture in Francophone Africa. The legal systems of the Francophone countries are, therefore, largely derived from the Napoleonic civil codes as imported by France. There are over 21 African countries that can be regarded as civil law jurisdictions. They include Morocco, Algeria, Egypt, Libya, Tunisia, Senegal, Cote d’Ivoire, Burkina Faso, Senegal, the Benin Republic, Togo, the Republic of Congo, Mali, Niger, Chad, the Central African Republic, the Democratic Republic of Congo, Angola, Mozambique and Madagascar. A second category of civil law jurisdictions exists in Africa. These comprise countries colonised by Belgium, Portugal and Italy. The laws of these categories are equally like those of other Francophone countries due to the influence of the Napoleonic civil codes in continental Europe. North Africa has a combination of Islamic law and civil law in place. This mixed system was dictated by the strong influence of Islam in the region and the adoption of French civil codes via Egypt.19 There are other mixed legal systems in sub-Saharan Africa as exemplified by South Africa where its common law is a mixture of English law and Roman-Dutch legal traditions – although it is broadly classified as a common law jurisdiction. The same position applies to many countries in the South African Development Community (SADC) such as the Kingdom of Eswatini, Namibia, Botswana and Zimbabwe. Cameroon is another example of a mixed legal system. Although it is a mostly civil law country, it has an English-speaking region where common law is applied. The brief historical analysis presented above indicates that the African legal terrain is highly diverse. This legal diversity permeates the theoretical foundations for the recognition and enforcement of foreign judgments. It is not surprising, therefore, that one finds different theories of recognition and enforcement of judgments applicable in different parts of Africa. Thus, foreign judgments are enforced in Africa on the theoretical architecture of comity, legal obligation, res judicata and reciprocity. To start with comity, it is a legal heritage bequeathed to Anglophone Africa. Although this doctrine has been discredited and jettisoned by judicial authorities,20 it continues to play some role in some common law jurisdictions in Africa.21 It has been cited in some Kenyan cases such as Jayesh Hasmukh Shah v Navin Haria & Anor22 and also formed the sole basis of enforcing a US judgment in Uganda in Christopher Sales v Attorney General23 where no reciprocal law exists between the State of origin and the State of recognition. Roodt and some scholars from South Africa have also opined that foreign judgments may be enforced under the statutory registration scheme in South Africa based on comity since the Enforcement of Foreign Civil Judgments Act of 1988 mentions neither reciprocity in the title of the legislation nor requires it in its content.24 This position is open to question as section 3 of the Act requires that judgments should only be enforced under the Act if the State of origin is a designated State. Be that as it may, it is indisputable that comity has not been widely adopted as a basis for enforcement of foreign judgments in Africa. 18 M Sesay, Domination Through Law: The Internationalization of Legal Norms in Postcolonial Africa (Rowman & Littlefield Publishers 2021) 66; LM Arguelles, ‘Mixed Jurisdictions: The Road Ahead’ in VV Palmer and MY Mattar (eds), Mixed Legal Systems, East and West (Taylor & Francis 2016) 34–35. 19 K El Chazli, ‘Recognition and Enforcement of Foreign Decisions in Egypt’ (2013) 15 Yearbook of Private International Law 387, 389–90. 20 Schibsby v Westenholz (1870) LR 6 QB 155; Adams v Cape Industries Plc [1990] Ch 433. 21 For the relevance of comity outside the Commonwealth, see Yekini, The Hague Judgments Convention and Commonwealth Model Law (n 1) 27–28. 22 Civil Appeal 147 of 2009. 23 Christopher Sales v Attorney General [2013] UGHCCD 15. 24 Roodt (n 8) 20–21. The author also cited other South African scholars who maintain this same position. Some of those works include CF Forsyth, Private International Law, 4th edn (Juta & Co Ltd 2003) 409; Hosten, Edwards, Bosman and Church, Introduction to South African Law and Legal Theory, 2nd edn (Butterworths 1995).

Prospects for Africa  285 The common law action on judgment is available in virtually all the common law jurisdictions. Common law treats a foreign judgment as creating a legal obligation which can be enforced in the receiving State. Most States that have this system in place allow a judgment creditor to file a fresh action together with an application for summary judgment with the certified true copy of the foreign judgment annexed to the application. This procedure is available in most common law jurisdictions such as Nigeria25 and Ghana.26 In South Africa, it is called a provisional sentence.27 It is a quick way of getting judgment without going through the rigour of litigation. As simple as this appears to be, the process or procedure may be complex and cumbersome in some cases, thereby defeating the purpose of the summary judgment procedure. Since the common law action on judgment is like a fresh action, it is open to litigation tactics that can frustrate a judgment creditor. The first hurdle on the part of the judgment creditor is establishing adjudicatory jurisdiction of the receiving State over the subject matter/judgment debtor,28 and an acceptable international jurisdiction basis for the court of the State of origin. The judgment debtor may also be able to raise fraud and other defences that can lead to a review of the foreign judgments on the merits.29 Reciprocity is another policy that is widely adopted in Africa. Arguably, it is the most common theoretical and legal basis for recognition and enforcement of foreign judgments in the continent, even though it is practised in different forms. Reciprocity often requires two willing States to set up bilateral negotiations where certain mutual concerns of foreign judgments can be addressed and both parties can guarantee reciprocal enforcement of judgments emanating between the two States. The outcome of that negotiation may form a bilateral treaty on judgments enforcement or both parties may extend a statutory enforcement scheme to judgments from each other’s courts. In some cases, statutes only require that the statutory registration scheme should be extended to courts of another State if relevant authorities are satisfied that the State of origin has extended similar benefit to judgments of the receiving State.30 In the common law jurisdictions in Africa, there are generally two forms of judgment reciprocal statutes in place. One is modelled after the UK Administration of Justice Act 1920.31 The other variant is modelled after the UK Foreign Judgments (Recognition and Enforcement) Act 1933.32 While the former was initially designed as an intra-Commonwealth scheme, the latter was designed to succeed the former with the possibility of extending the scheme to nonCommonwealth States. In some countries such as Nigeria, this has led to a somewhat convoluted

25 See Order 13, High Court of Lagos State (Civil Procedure) Rules 2019; A Yekini, ‘Foreign judgments in Nigerian courts in the last decade: a dawn of liberalization’ (2017) 2 Nederlands Internationaal Privaatrecht 205, 207. 26 RF Oppong, ‘Recognition and Enforcement of Foreign Judgments in Ghana: A Second Look at the Colonial Inheritance’ (2005) 31 Commonwealth Law Bulletin 19, 23. 27 See Jones v Krok 1995 (1) SA 677. 28 For instance, the defendant may not be resident in the receiving State and the underlying contract has no connection with the receiving State. See, for instance, ICLG, The International Comparative Legal Guide to Enforcement of Foreign Judgments 2018 (Global Legal Group Ltd 2018) 185; RF Oppong, Private International Law in Commonwealth Africa (Cambridge University Press 2019) 320–21. 29 For the prohibition of reviewing the merits of foreign judgments on mere allegation of fraud, see Wolfgang Hau, ch 2 and Marcos Dotta Salgueiro, ch 4, in this volume. 30 For instance, see s 87 Courts Act 1993 (Act 459) of Ghana. 31 See Reciprocal Enforcement of Foreign Judgments Ordinance, 1922 (Nigeria); Reciprocal Enforcement of Judgments Proclamation No 2 of 1922 (Lesotho); British and Colonial Judgments Act 1922 (Malawi); Reciprocal Enforcement of Judgments Act 1923 (Mauritius); Reciprocal Enforcement of Judgments Act No 4 of 1922 ((Kingdom of Eswatini); Reciprocal Enforcement of Judgments Act 1922 (The Gambia); Reciprocal Enforcement of Judgments Act 1922 (Uganda) 32 See Foreign Judgments (Reciprocal Enforcement) Act 1961 (Nigeria); Foreign Judgments (Reciprocal Enforcement) Act 1961 (Mauritius); Foreign Judgments (Reciprocal Enforcement) Act 1935 (Sierra Leone); Foreign Judgments (Reciprocal Enforcement) Act 1936 (The Gambia); Foreign Judgments (Reciprocal Enforcement) Act 1961 (Uganda).

286  Abubakri Yekini and Chukwuma Okoli duality regime for statutory enforcement of judgments as both statutes are currently in force.33 A few African common law jurisdictions such as Kenya (2012),34 Namibia (1994)35 and Tanzania (2002)36 have recently enacted a new reciprocal statute. These statutes are not different from the older statutes in any fundamental respect. In the civil law countries in Africa, reciprocity remains the main policy for foreign judgments recognition and enforcement. By default, foreign judgments have no direct effects unless there is a treaty in place between the receiving State and the State of origin. The basic legal framework in these states is the Code of Civil Procedure. Unlike the common law states, there is no separate statute for recognition and enforcement of foreign judgments. The Codes usually permit foreign judgments to be enforced after undergoing an exequatur proceeding. For instance, Article 204 of the Rwandan Code of Procedure provides that: ‘Except where international agreements provide otherwise, judgements ruled by foreign courts and foreign deeds issued by foreign officials shall not be subject to execution in Rwanda, unless they are rendered enforceable by the competent Court’.37 An exequatur is a special proceeding for the declaration of enforceability of the foreign judgment in the receiving State. This special proceeding enables the court of the receiving State to examine the foreign judgment in order to determine whether it meets certain formal requirements or conditions for recognition. The conditions include whether there is evidence of reciprocal enforcement of judgments between the receiving State and the State of origin or at least a favourable treatment of the judgments of the receiving State in the State of origin, whether the foreign court had international jurisdiction, whether the judgment was properly procured and whether the enforcement would not violate the receiving State’s public policy.38 The practical implication is that a foreign judgment would not be enforced if there is no treaty in place or sufficient evidence of favourable treatment of judgments of the receiving State. International judicial cooperation is a fourth theoretical basis for recognition and enforcement of foreign judgments.39 In recent times, this comes in the form of multilateral conventions and court-to-court agreements. Examples include the brand new HCCH 2019 Judgments Convention, the HCCH 2005 Choice of Court Agreements and various bilateral memoranda on enforcement of commercial judgments by various international commercial courts.40 For instance, in 2013, the Dubai International Financial Centre Courts signed a memorandum of guidance on the enforcement of judgments with English commercial courts.41 A similar 33 See generally, CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart Publishing 2020) ch 18; Yekini, ‘Foreign judgments in Nigerian courts in the last decade’ (n 25); A Olawoyin, ‘Enforcement of Foreign Judgments in Nigeria: Statutory Dualism and Disharmony of Laws’ (2014) 10 Journal of Private International Law 130; HA Olaniyan, ‘The Commonwealth model and conundrum in the enforcement of foreign judgement regime in Nigeria’ (2014) 40 Commonwealth Law Bulletin 76; G Bamodu, ‘The Enforcement of Foreign Money Judgments in Nigeria: A Case of Unnecessary Judicial Pragmatism?’ (2012) 12 Oxford University Commonwealth Law Journal 1. See also, IO Omoruyi and FA Onomrerhinor, ‘Attitude of Nigerian Courts to the Enforcement of Foreign Judgments: An Examination of Selected Decisions of the Court of Appeal and the Supreme Court’ (2018) 9 Nnamdi Azikiwe University Journal of International Law and Jurisprudence (NAUJILJ) 28. 34 Foreign Judgments (Reciprocal Enforcement) Act 2012 (Kenya). 35 Enforcement of Foreign Civil Judgments Act No 28 1994 (Namibia). 36 Tanzania Reciprocal Enforcement of Foreign Judgments Act No 8 [Re 2002]. 37 Law No 21/2012 of 14 June 2012, Law relating to the civil, commercial, labour and administrative procedure, Official Gazette no 29 of 16 July 2012. 38 TE Carbonneau, ‘The French Exequatur Proceeding: The Exorbitant Jurisdictional Rules of Articles 14 and 15 (Code Civil) as Obstacles to the Enforcement of Foreign Judgments in France’ (1979) 2 Hastings International and Comparative Law Review 307, 310–11. 39 Yekini, The Hague Judgments Convention and Commonwealth Model Law (n 1) 44. 40 ibid, 44–45. 41 The text of the MoU is available at: www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/uk-uaeprotocol-with-logos.pdf.

Prospects for Africa  287 agreement was signed in 2017 between the Supreme Court of Singapore and Abu Dhabi Global Market Courts.42 African countries have not really fared well in the area of international judicial cooperation. There is no continental-wide treaty or court-to-court agreement for the recognition of judgments in Africa. Neither is any African country a State Party to the aforementioned HCCH Conventions on Judgments and Choice of Court Agreement. However, there are pockets of bilateral and plurilateral treaties in force. Egypt is a party to the Convention of the Arab League on the Enforcement of Judgments and Arbitral Awards, 1952. This Convention applies amongst some of the Arab States in North Africa and their counterparts in the Middle East.43 Egypt44 and Algeria45 also have in place a bilateral agreement with France on the enforcement of foreign judgments. Algeria, Egypt, Ethiopia, Morocco and Tunisia have signed bilateral treaties with China on recognition of foreign judgments.46 Other scholarly works have identified a few other bilateral treaties. For instance, Senegal signed a judicial cooperation agreement with France, Gambia, Guinea Bissau, Cape Verde and Mali;47 Cameroon signed a treaty on legal cooperation and enforcement of judgments with France in 1974, and the Democratic Republic of Congo (DRC–Kinshasa) has a judicial cooperation agreement in place with the Republic of Congo (Brazzaville).48

III.  AfCFTA and the Need for a Multilateral Judgments Convention The preceding section highlights judgments recognition and enforcement laws and policies in Africa. The outlook confirms the plurality of underlying theories that inform the respective laws and policies. While these theories have inherent values, it is open to question whether their respective applications, without more, are of any help in the liberalisation of foreign judgments enforcement in Africa and the world. Comity is of minimal application in Africa as only a few states have adopted this policy.49 Despite having the potential to liberalise foreign judgments’ enforcement, it creates uncertainties 42 The text of the MoU is available at: www.adgm.com/documents/courts/memorandum-of-understanding/international/ finalmouforjudicialcooperationbetweensupremecourtofsingaporeandadgmcourtssigned8mar2017.pdf. 43 Egypt was an original party to the Convention. It seems other African states such as Libya joined later. See Habib Mohd Sharif Al Mulla, ‘Conventions of Enforcement of Foreign Judgments in the Arab States’ (1999) 14 Arab Law Quarterly 33, 36. 44 N Bremer, ‘Seeking Recognition and Enforcement of Foreign Court Judgments and Arbitral Awards in Egypt and the Mashriq Countries’ (2018) Journal of Dispute Resolution 109, 113, citing the existence of a 1982 Convention on Judicial Cooperation in Civil Matters, including Personal Statute, Social, Commercial and Administrative Matters between Egypt and France. 45 A Ahmed, ‘The Non-Judicial Divorce: A study in the light of the rules of Algerian Private International Law’ (2021) 7 Law and Political Science Journal 417, 423; Lex Africa: ‘Guide to the Enforcement of Foreign Money Judgments and Arbitral Award in Africa: Algeria’, available at: www.lexafrica.com/wp-content/uploads/2019/05/Lex-Africa-EnforcementGuide-DIGITAL.pdf. 46 Texts of these treaties are available at the Chinese Justice Observer, ‘List of China’s Bilateral Treaties on Judicial Assistance in Civil and Commercial Matters (Enforcement of Foreign Judgments Included)’: www.chinajusticeobserver. com/a/list-of-chinas-bilateral-treaties-on-judicial-assistance-in-civil-and-commercial-matters. 47 Lex Africa (n 45) 31. 48 ibid, 13. 49 See Oppong, Private International Law in Commonwealth Africa (n 28) 316 citing Duarte v Lissack 1973 (3) SA 615, 621; Commissioner of Taxes, Federation of Rhodesia v McFarland 1965 (1) SA 470, 471; Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd 1986 (3) SA 509, 513–16 as some of the cases where the South African courts have made references to comity. See further, Yekini, The Hague Judgments Convention and Commonwealth Model Law (n 1) citing a Ugandan case – Christopher Sales v Attorney General [2013] UGHCCD.

288  Abubakri Yekini and Chukwuma Okoli and unpredictable results for litigants as it is generally regarded as an imprecise concept. Its frontiers and contours are undefined. Litigants may not be able to make an informed decision concerning where to sue or when to defend or refrain from foreign proceedings, what kinds of judgments can be enforced and what ground(s) may be invoked in enforcement proceedings. Therefore, African countries need more than just comity as a legal basis for recognition and enforcement of foreign judgments. For the common law jurisdictions that have adopted the doctrine of legal obligation, foreign judgments have fared well in these states through the instrumentality of the summary judgment procedure that enables judgment creditors to enforce foreign money judgments irrespective of the State of origin. However, this procedure may be complicated in some cases. It may also involve higher costs compared with other simpler procedures such as statutory registration. As argued against comity, judgment creditors will equally be faced with some uncertainties and unpredictable results considering the divergence in national substantive laws and civil procedure rules. Yet, the biggest challenge may be the slow pace of litigation in Africa. Even in supposedly advanced common law jurisdictions in Africa such as Nigeria, it takes an average of 3.5 years to conclude a civil suit.50 A survey of some Nigerian cases on statutory registration of foreign judgments also indicates that it takes an average of two years to resolve issues surrounding the registration of judgments. In Mudasiru & Ors v Onyearu & Ors,51 a foreign judgment was registered in 2008 and the appeal was disposed of in 2010 (two years); in Consolidation Contractors, Co Sal v Masiri,52 and Teleglobe America Incorporation v 21st Century Technologies Ltd,53 the appeals were determined in two years respectively; Willbros West Africa Inc & Ors v Mcdonnel Contract Minning Ltd54 was determined in three years; Kabo Air Ltd v The O’ Corporation Ltd55 was determined in four years; Obasi v Mikson Establishment Industries Ltd56 was determined in five years; Macaulay v RZB of Austria57 and Vab Petroleum Inc v Momah58 were decided by the Supreme Court six and 20 years, respectively, after the trial court registered the judgment. Perhaps, a common law action on judgment will suffer the same fate or take an even longer time to dispose of.59 Reciprocity, in every form it has been practised in Africa, has not helped the circulation of judgments on the continent. In the common law jurisdictions, the statutory registration scheme is applied on this basis. Sadly, the reciprocal statutes have been extended to only a few African states. For instance, Ghana designated only one state;60 Kenya designated six states;61 Lesotho 50 Y Osinbajo, ‘The Retreat of the Legal Process’, paper presented at the Founder’s Day Lecture of the Nigerian Institute of Advanced Legal Studies (17 March 2011), available at: www.nials-nigeria.org/round_tables/TheRetrateoftheLegalProcess. pdf. 51 Mudasiru & Ors v Onyearu & Ors (2013) LPELR-20354(CA). 52 Consolidation Contractors, Co Sal v Masiri (2010) LPELR-4001(CA). 53 Teleglobe America Incorporation v 21st Century Technologies Ltd (2008) LPELR-5006(CA). 54 Willbros West Africa Inc & Ors v Mcdonnel Contract Minning Ltd (2015) LPELR-24808(CA). 55 Kabo Air Ltd v The O’ Corporation Ltd (2014) LPELR-23616(CA). 56 Obasi v Mikson Establishment Industries Ltd (2004) LPELR-7391(CA). 57 Macaulay v RZB of Austria (2003) LPELR-1802(SC). 58 Vab Petroleum Inc v Momah (2013) LPELR-19770(SC). 59 Nuno Albuquerque and Conceição Manita Ferreira have shared a similar experience with enforcement procedures in Angola. See ICLG (n 28) 19. 60 See Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument 1993 (LI 1575). The designated countries are Brazil, France, Israel, Italy, Japan, Lebanon, Senegal, Spain and the United Kingdom. 61 See Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order 1984. The designated countries are the United Kingdom, Australia, Malawi, the Seychelles, Tanzania, Uganda, Zambia and Rwanda.

Prospects for Africa  289 designated six states;62 Malawi designated four states;63 Namibia designated one state;64 Nigeria designated three states;65 Seychelles designated one state;66 Sierra Leone designated two states;67 South Africa designated one state;68 and the Kingdom of Eswatini designated eight states.69 In the civil law jurisdictions of Africa, reciprocity produces the same result. Although there is a dearth of academic works on the reciprocity practice in the civil law jurisdictions in Africa, one can assume that the practice would be greatly influenced by Continental civil law tradition. However, it has been noted by some scholars that the North African countries such as Egypt and Tunisia treat foreign judgments in the way that their judgments are treated in the State of origin. Elbalti concludes that reciprocity would only be denied if the law of the State of origin is more restrictive.70 It is easier to establish reciprocity if a foreign judgment comes from a common law jurisdiction as the latter presumptively enforces foreign judgments without the need for establishing reciprocity. However, the same cannot be said for judgments from civil law jurisdictions, as reciprocity provided in their laws, or their judicial practice, requires proof of reciprocity. The concept of revision au fond may also be applied to foreign judgments where there is no treaty relationship between the receiving State and the State of origin. However, following the decision in Munzer v Munzer,71 many civil law jurisdictions in Africa are gradually dropping this concept.72 Africa is in dire need of progressive development of its judgments recognition and enforcement laws. The absence of harmonised continental and/or global frameworks hinders the circulation of judgments in the continent. Resulting uncertainties and inefficiencies in the extant frameworks would not only constitute a trade barrier to intra-African trade and commerce, but also scare foreign investors away from the continent. The African Union’s 2063 Agenda of an integrated and prosperous Africa began to yield positive results with the establishment of the African Continental Free Trade Area (AfCFTA). AfCFTA’s Secretariat asserts that the common market is the largest in the world, with a collective GDP of $3 trillion serving about 1.3 billion people.73 The implementation of AfCFTA is expected to boost intra-African trade and commerce with simplified trade and customs procedures

62 See Reciprocal Enforcement of Judgments Proclamation No 2 of 1922 of Lesotho. 63 See British and Colonial Judgments Act 1922. Designated countries are the United Kingdom, Kenya, Uganda, Tanzania and Zambia. 64 See Enforcement of Foreign Civil Judgments Act No 28 of 1994. 65 The Reciprocal Enforcement of Foreign Judgments Ordinance 1922. The designated countries are the United Kingdom, Ghana, Sierra Leone, The Gambia, Barbados, Guyana, Grenada, Jamaica, Antigua and Barbuda, St Kitts & Nevis, St Lucia, St Vincent, Trinidad & Tobago, Canada (Newfoundland) and Australia (New South Wales and Victoria). 66 Foreign Judgments (Reciprocal Enforcement) Act 1961 and Reciprocal Enforcement of British Judgments Act 1922. 67 See Foreign Judgments (Reciprocal Enforcement) Act 1935. The designated countries are the United Kingdom, Nigeria and Gambia. 68 See Enforcement of Foreign Civil Judgments Act 32 of 1988. 69 Reciprocal Enforcement of Judgments Act No 4 of 1922. The designated countries are the United Kingdom, Lesotho, Botswana, Zambia, Zanzibar, Malawi, Kenya, New Zealand, Tanzania, Uganda and Australia (Western Australia, New South Wales, Victoria, Territory of North Australia, and the Territory of Southern Australia). 70 B Elbalti, ‘Reciprocity and the Recognition and Enforcement of Foreign Judgments: A lot of Bark but not much Bite’ (2017) 13 Journal of Private International Law 184, 186. 71 Munzer v Munzer [1964] Rev Crit DIP 344, cited and discussed in G Cuniberti, ‘The Liberalization of the French Law of Foreign Judgments’ (2007) 56 International & Comparative Law Quarterly 931. 72 For Angola see ICLG (n 28) 17–18; for Cameroon, see D Motte-Suraniti, ‘L’exequatur des jugements du Cameroun’, available at: motte-suraniti-avocat.com/exequatur-continent/afrique/cameroun/. 73 AfCFTA Secretariat, ‘Inaugural Meeting of the Dispute Settlement Body of the African Continental Free Trade Area (AfCFTA)’ (26 April 2021), available at: afcfta.au.int/en/events/2021-04-26/dispute-settlement-body-aims-settle-tradedisputes-between-member-states.

290  Abubakri Yekini and Chukwuma Okoli in Africa.74 This is not the end of the story. Africa is expected to benefit from global trade and services, as trade liberalisation will drive foreign investment to Africa. Invariably, AfCFTA will also boost trade and commerce between Africa and the world. What is the role of private international law in the scheme of AfCFTA? Sadly, AfCFTA and its protocols do not have any provisions for the harmonisation of private international law. This has been a source of concern for scholars of private international law in Africa considering the huge impacts that a harmonised private international law regime in Africa would have in promoting trade and commerce within and beyond the continent.75 Unlike Article 220 of the EEC Treaty that provides for the simplification of formalities on recognition and enforcement of judgments, which partly prioritised protection of acquired rights, legal certainty and predictability, AfCFTA dispute settlement mechanisms’ protocol is conspicuously silent on cross-border private dispute resolution. Legal certainty and predictability minimise investment risks.76 They equally reduce transaction costs and improve the ease of doing business. Assuming Africa has harmonised its rules on adjudicatory jurisdiction, applicable law and the enforcement of foreign judgments, investors from other African states or elsewhere need not worry about the legal architecture of the specific countries they are investing in. This will not be the case in the absence of harmonisation. As such, these investors need to design their investment plans to consider the specific legal risks of targeted countries. They need to worry about divergent jurisdictional rules – litigation risk – whether those jurisdictions enforce contractual agreements, and whether judgments obtained elsewhere can be enforced in these targeted countries – enforcement risk. These uncertainties will be factored into the cost of production and thus lead to an increase in transaction costs of doing business in Africa. Litigation and enforcement risks are direct effects of the lack of a harmonised regime for foreign judgments in Africa. Jurisdiction and judgment are like Siamese twins. They are inextricably linked. Two difficult issues are always encountered in any judgments treaty negotiation: the question of international jurisdiction, and acceptable grounds for refusal. In the absence of a continental or global harmonisation, litigants would not be able to make a strategic decision at the litigation stage and this question may come back to haunt them at the enforcement stage. A State addressed will always enquire into jurisdictional facts based on the forum law. One of the challenges judgment creditors will face in the common law jurisdictions of Africa is the outdated international jurisdiction rules developed by the common law courts in England over a century ago. The common law rule of presence/residence and submission as the only acceptable grounds of international jurisdiction make it very hard to enforce foreign judgments obtained against judgment debtors who are non-resident in the State of origin even though that State is well connected to the underlying contract. The Nigerian Supreme Court expresses its frustration on this point thus: I have no doubt that it is inimical to the interest of trade and commerce if Judgments in foreign countries cannot be readily enforced in Nigeria. It is particularly alarming that when in a case like this, a person ordinarily resident in Nigeria obtains a credit in England and in satisfaction issues a cheque which is later dishonoured, the Judgment obtained against him cannot be enforced in Nigeria. Under Section 3(2)(b) above, the Judgment of a Court in England cannot be enforced in Nigeria on the ground that a defendant has not submitted to the Jurisdiction of the English Court. There is an urgent need to 74 World Bank, The African Continental Free Trade Area: Economic and Distributional Effects (World Bank 2020) 37–39. 75 Yekini, ‘Nigeria and AfCFTA: What Role has Private International Law to Play?’ (n 7); Oppong, ‘AfCFTA and International Commercial Dispute Resolution’ (n 7); Uka, ‘Cross Border Dispute Resolution under AfCFTA (n 7). 76 Fentiman (n 6) 5–8.

Prospects for Africa  291 reform our Law on the matter. It is an open invitation to fraud and improper conduct … There is as yet no amendment of the law in Nigeria to reflect the various developments in the world which recognize the principle of ‘comity’ and jurisdictional reciprocity.

Indeed, in this case, the registration of an English judgment was set aside because the judgment debtor did not participate in the English proceedings even though the court summons was served on the judgment debtor in Nigeria. In this circumstance, judgment creditors may be left with no remedy in this situation. Enforcement risks are not limited to divergent national jurisdictional laws, but also denial grounds. These grounds vary from state to state. In Al-Shafi Investment group LLC v Ahmed Darwish & Anor,77 a Ugandan court denied recognition (conclusive effect) to a judgment from the United Arab Emirates because the underlying cause of action breached the law of Uganda. The court ruled that the action should therefore be set down for trial on merit. In Kenya, a foreign judgment would not be accorded a conclusive effect if the underlying claim breached any Kenyan law.78 In South Africa, a foreign judgment may be denied recognition if it is precluded by the Protection of Business Act 99 of 1978.79 Litigants who seek to enforce judgments in North Africa may need to be wary of the forum law of the State addressed which includes Islamic law.80 The extant reciprocal regimes in Africa are not only justifiable but also cannot support trade liberalisation as envisioned by AfCFTA. It is difficult to rationalise the pattern of designation. One expects that neighbouring African countries or those within the same economic bloc such as ECOWAS,81 EAC,82 SADC83 and COMESA84 should be prioritised. However, this has never been the case. African countries extend reciprocal statutes to countries in Asia, Latin America and Europe but neglect their neighbours. We cannot but agree with Roodt that the designation process is flawed and discriminatory as it places private litigants in some countries in a disadvantaged position.85 Besides, it is worrying that some African countries have a treaty relation on foreign judgments with countries in Europe and Asia but not Africa. This does not speak well for a continent that is pursuing a continental trade liberalisation agenda.

IV.  The Prospects of the HCCH 2019 Judgments Convention for Africa The Hague Conference on Private International Law (HCCH) is a melting point for the harmonisation of divergent national private international law rules. Under its auspices, several multilateral 77 Al-Shafi Investment group LLC v Ahmed Darwish & Anor [2017] UGHCCD 205. 78 s 9(f), Civil Procedure Act, Chapter 21, Laws of Kenya, revised edition 2012. 79 South African courts have consistently listed this Act as a ground for non-recognition of foreign judgments. See Elan Boulevard (Pty) Limited v Mahomed [2016] ZAKZDHC 49; Trademore (Pty) Ltd v Minister of Trade and Industry and Another [2019] ZAGPPHC 591; Jones v Krok [1994] ZASCA 177; 1995 (1) SA 677 (AD); [1995] 2 All SA 30 (A). However, the Act has been restrictively interpreted to affect only foreign judgments whose underlying contracts fall within the scope of the Act ie raw materials. 80 Bremer (n 44) 113–16. 81 Economic Community of West African States, cf Revised Treaty of the Economic Community of West African States (ECOWA) of 24 July 1993, 2373 UNTS I-42835; a list of Member States is available at: ecowas.int/?page_id=381. 82 East African Community, cf Treaty for the establishment of the East African Community of 30 November 1999, 2144 UNTS I-37437; for a list of partner states, see: www.eac.int/eac-partner-states. 83 Southern African Development Community, cf Treaty of the Southern African Development Community of 17 August 1992, 3062 UNTS I-52885; the Member States listed at: www.sadc.int/member-states/. 84 Common Market for Eastern and Southern Africa, cf Treaty establishing the Common Market for Eastern and Southern Africa of 5 November 1993, 2314 UNTS I-41341; a list of Member States is provided at: www.comesa.int/members/. 85 Roodt (n 8) 23.

292  Abubakri Yekini and Chukwuma Okoli conventions have been concluded with the latest being the HCCH 2019 Judgments Convention. This Convention is the product of decades of hard work on the part of HCCH, and various national negotiators. It is the second fruit of the Hague Judgments Project, the first being the HCCH 2005 Choice of Court Convention. These two Conventions are a package deal that offers legal certainty and efficient global frameworks for the recognition and enforcement of foreign judgments.

A.  Africa’s Participation This chapter has thus far demonstrated that the response of Africa to private international law issues both at national and continental levels are unsatisfactory. This calls for concern, particularly, at this period when Africa is setting up a continental free trade area. The ‘judicial and juridical insecurity’, as coined by Salvatore Mancuso,86 arising from the inadequate and inefficient judgments enforcement mechanisms in Africa impede the promotion of trade and commerce within Africa and certainly from the world to Africa. There are only a few scholarly works on why Africa has not been able to progressively develop its private international law.87 Be that as it may, the relevant question this section seeks to address is what has been the relationship of Africa with the HCCH and what is the prospect of the HCCH 2019 Judgments Convention in Africa. Africa has not maintained a significant presence at the HCCH. Since its inception to date, of the 55 African countries, only eight are Members of the HCCH.88 This represents 8.9 per cent of HCCH membership as of December 2021.89 If compared with other regions – Americas 18.9 per cent, Asia Pacific 23.3 per cent, Europe 48.9 per cent – it is crystal clear that Africa is grossly underrepresented at the HCCH and its activities. The latest statistics from the HCCH also reveals that of the 36 staff of the Permanent Bureau, none is from Africa.90 The underrepresentation of Africa at the HCCH is worrying and several authors have shared this concern as well.91 Recently, the Secretary General of the HCCH, Christophe Bernasconi, equally lamented the underrepresentation of African states and the low visibility of the body on the continent.92 His commitment to promoting the HCCH’s activities in Africa is a welcome development.93 That commitment is already yielding results with the hosting of the African Regional Conference on the HCCH Children’s Conventions in Cape Town in March 2019.94 It is hoped that African countries will seize that opportunity to get on board with a view to developing private international law for a prosperous Africa. Joining the HCCH and partaking in the negotiation of its Conventions will enhance the prospect of adoption of HCCH Conventions in Africa. 86 S Mancuso, ‘The New African Law: Beyond the Difference Between Common Law and Civil Law’ (2008) 14 Annual Survey of International & Comparative Law 39, 39. 87 See generally, R Oppong, ‘Private International Law in Africa: The Past, Present and Future’ (2007) 55 American Journal of Comparative Law 677. 88 Burkina Faso, Egypt, Morocco, Mauritius, South Africa, Tunisia, Namibia and Zambia. See ‘HCCH Members’, available at: www.hcch.net/en/states/hcch-members. 89 The Permanent Bureau, ‘Representation at the HCCH’ Prel Doc No 22 of December 2021, available at: assets.hcch. net/docs/a2310948-7e7c-418c-8db6-dbc548a28363.pdf. 90 ibid, 3–4. 91 For instance, see RF Oppong and P Okoli, ‘The HCCH’s Development in Africa’ in T John, R Gulati and B Köhler (eds), The Elgar Companion to The Hague Conference on Private International Law (Edward Elgar, 2020). 92 International Union of Judicial Officers, ‘Record Participation at the Council on General Affairs and Policy of the Hague Conference on Private International Law’, available at: uihj.com/archive-uihj/en/record-participation-at-thecouncil-on-general-affairs-and-policy-of-the-hague-conference-on-private-international-law_2164239.html. 93 ibid. 94 See HCCH, Annual Report 2019 (HCCH 2020) 22.

Prospects for Africa  293

B.  Practical Benefits for Africa Pontian Okoli has argued that African countries will subscribe to HCCH Conventions if there are practical benefits to be derived from those Conventions and they consider them necessary.95 He supported his claim by citing the HCCH 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. This Convention has indeed been signed by several African states. The authors counted 20 states at the time of writing this chapter. This is a huge success in Africa considering that only eight African states are Members of the HCCH. But as Okoli hinted, could it be that African countries have more interest in, and consider intercountry adoption more necessary than other civil and commercial matters (eg, Evidence Convention,96 Service Convention,97 Choice of Court Convention)?98 Perhaps, the trajectory will change with the recent renewed interest in the continental free trade area. It is time therefore that African countries were reminded of the inherent values of commercial conventions, particularly the HCCH 2019 Judgments Convention. This Convention is valuable and necessary for the promotion of trade liberalisation within Africa and between Africa and the world. The continent needs law and order to realise the full potential of AfCFTA. As discussed earlier, there is no harmonised framework for the recognition and enforcement of foreign judgments in Africa. Litigants are left with divergent national laws which are in most cases ineffective and outdated. The HCCH 2019 Judgments Convention is a ready-made solution that can fill this huge gap. The Convention provides a simple and modern framework for the collection of judgments across the globe. The absence of a harmonised regime in Africa also harms access to justice. If litigants are left at the mercy of national courts, inefficient national civil procedures and outdated national laws, judgment creditors will be shut out of court as they may find out after laborious litigation abroad that the resulting judgment cannot be enforced elsewhere. Where the courts are willing to enforce, judgment creditors may be frustrated or at least pay a huge amount of money and waste quality business time in court, especially in common law jurisdictions where debtors can use the appellate system to frustrate enforcement proceedings as seen in Nigeria, for instance. Ratifying the HCCH 2019 Judgments Convention will replace the outdated and divergent laws and procedures with a modern and simple framework established by the Convention. It is equally envisaged that the expanded jurisdictional filters and clearly worded denial grounds should reduce the grounds for challenging foreign judgments as some of the current problems arise from nebulous drafting, restrictive and/or overly broad grounds. The Convention is a global framework that seeks to liberalise the enforcement of foreign judgments across the globe. Currently, judgments from African countries do not fare well abroad, especially in civil law jurisdictions. In recent statistics on the enforcement of foreign judgments in China, for instance, two judgments from Africa were not enforced. The first was a Chadian judgment that was rejected for lack of reciprocity in 2014. The second case99 came up in 2019 where an application to enforce a Kenyan judgment was permitted to be withdrawn. It was suggested that 95 P Okoli, ‘The Place of Africa on the Global Stage of Foreign Judgments Enforcement’ (5 February 2020), available at: www.afronomicslaw.org/2020/02/05/the-place-of-africa-on-the-global-stage-of-foreign-judgments-enforcement. 96 Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters; acceded to by South Africa (1997) and Seychelles (2004). 97 Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; ratified by Egypt (1966); acceded to by Malawi (1972), Morocco (2011), Seychelles (1980), Tunisia (2017). 98 No African country has ratified the Convention. 99 Liu Chongliang v Webwave Electric Manufacturing Co Ltd (Kenya) (2018) Zhe 02 Xie Wai Ren No 1.

294  Abubakri Yekini and Chukwuma Okoli the judgment would not be enforceable anyway for lack of reciprocity.100 This should be a concern for African governments and investors considering the unprecedented inflow of massive investment from China, and of course other parts of the world, to Africa. Ratifying the Convention will greatly improve the reception of judgments from Africa abroad as such judgments will freely circulate in all State Parties to the Convention. Furthermore, the Convention will improve the accessibility of the law on recognition and enforcement of judgments in Africa. Currently, there is a multiplicity of laws in place. In some jurisdictions like Nigeria, the frameworks are convoluted with two different statutory regimes operating side by side and this has generated and continues to generate confusion leading to enforcement cases being litigated as far as the Supreme Court.101 In civil law jurisdictions, it is difficult to access the practicalities of the enforcement regimes as the law reporting system is not as robust as what is obtainable in common law jurisdictions. The Convention therefore will largely address the problem of accessibility of the law and practice of judgments enforcement in Africa as practitioners, judges and litigants can benefit from the detailed provisions and the extensive technical support being offered by the HCCH. One of the obstacles that states face in ratifying or acceding to multilateral treaties is the divergence between the provisions of a multilateral treaty and national laws. It is delightful to know that the Convention is not radically different from the laws of most African states. It is a pragmatic instrument derived from painstaking efforts from the Experts’ Group, the Special Commission and versatile negotiators. The Convention is a minimum harmonisation that takes cognisance of the divergent legal traditions of states, states’ interests and policies. It aggregates widely shared jurisdictional filters and common denial grounds. The drafters exclude areas where consensus has not emerged and have largely retained only jurisdictional grounds that are most connected to the defendant or subject matter.102 The Convention further allows State Parties to go beyond the frontiers set by the Convention. This is especially important for African countries. The Convention can be ratified by African states to promote global circulation of judgments and they can also extend its scope for intra-African judgments, if necessary, in order to deepen cooperation and trade liberalisation in Africa. Africa will require strong political will and massive resources to mobilise for an African multilateral judgments convention. This is a tall order considering that many African states are facing economic crises and dwindling resources. Many states may lack the financial resources needed to effectively participate in such a multilateral negotiation. The HCCH 2019 Judgments Convention, therefore, is a way out of the current legislative/executive inactions and judicial lamentation. If a workable solution is available, African countries should adopt it in order to judiciously utilise the scarce resources.

V. Conclusion The current approach to the recognition and enforcement of foreign judgments in Africa is far from satisfactory. This approach has been plagued by the diverse approaches to the recognition and enforcement of foreign judgments in Africa – a product of years of foreign rule in Africa by various European powers with different legal regimes. 100 Guodong Du and Meng Yu, ‘List of China’s Cases on Recognition of Foreign Judgments’, available at: www.chinajusticeobserver.com/a/list-of-chinas-cases-on-recognition-of-foreign-judgments. 101 See generally, A Yekini, ‘Foreign judgments in Nigerian courts in the last decade’ (n 25). 102 Yekini, The Hague Judgments Convention and Commonwealth Model Law (n 1) 185–86.

Prospects for Africa  295 It is a good thing that African politicians are seriously concerned with the issue of economic prosperity in Africa. This is not something new. Political and economic integration initiatives have always formed part of the discussion of African politicians immediately after the post-colonial era. AfCFTA is a recent manifestation of this drive towards economic prosperity in Africa. Yet an important point that is missing is the recognition and enforcement of foreign judgments. African countries cannot continue to rely on old approaches like comity, obligation, reciprocity and res judicata if they want to achieve the goals of economic prosperity. A liberal and modern approach such as a multilateral treaty on the recognition and enforcement of foreign judgments is needed to achieve these goals. The HCCH 2019 Judgments Convention as a modern multilateral treaty on the recognition and enforcement of foreign judgments offers positive prospects to many African countries in achieving economic prosperity, especially in the context of AfCFTA. This is an opportunity that should be seriously considered by African politicians and other stakeholders, in terms of ratifying and implementing the Convention. The time to act is now.

296

14 China ZHENG TANG*

I. Introduction China played an active role in the negotiation of the HCCH 2019 Judgments Convention. It dispatched a large delegation with 21 members from the Ministry of Foreign Affairs, the Ministry of Commerce, the State Administration for Market Regulation, the National Copyright Administration, the National Intellectual Property Administration, the Supreme People’s Court, the Department of Justice of the Hong Kong Special Administrative Region (HKSAR), the Legal Affairs Bureau of the Macao Special Administrative Region (MSAR) and academics, and actively and constructively participated in all the negotiations, to build consensus and to bridge gaps.1 The contribution of China to the HCCH 2019 Judgments Convention is recognised by commentators.2 China’s positive contribution to the conclusion of the Convention, as well as China’s signing of its sister Convention, the HCCH 2005 Choice of Court Convention, reflects China’s political needs and international strategic plan. On the one hand, China has since 2013 proposed a grand ‘One Belt One Road’ (OBOR 一带一路).3 The international connectivity that China aims to promote requires effective dispute resolution for civil and commercial disputes, and given the size of the OBOR and participating countries, an international, multilateral convention would be the most efficient and cost-effective approach in contrast to other methods, like multiple bilateral dispute resolution mechanisms. It is reasonable to argue that the HCCH 2019 Judgments Convention would serve China’s goal. On the other hand, the tension between China and the United States started after the Trump Administration began a trade war with China in early 2018 which escalated in 2019 following the outbreak of the Covid-19 pandemic.4 Facing increasing unilateralism and protectionism from the United States, China has the stronger desire

* Professor, Wuhan University Institute of International Law; Associate Dean, Wuhan University Academy of International Law and Global Governance. 1 CICC, ‘The 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has been adopted’: cicc.court.gov.cn/html/1/219/208/209/1303.html. 2 P Beaumont, ‘Judgments Convention: Application to Governments’ (2020) 67 Netherlands International Law Review 121, 134, fn 10. 3 Guodong Du and Meng Yu, ‘China and HCCH Judgments Convention 2019’, available at: www.chinajusticeobserver. com/a/china-and-hcch-judgments-convention-in-2019. 4 See, in general, CP Bown, ‘The 2018 US–China trade conflict after forty years of special protection’ (2019) 12 China Economic Journal 109; Ana Swanson, ‘Trump’s Trade War with China is Officially Underway’ New York Times (5 July 2018), available at: www.nytimes.com/2018/07/05/business/china-us-trade-war-trump-tariffs.html.

298  Zheng Tang to demonstrate its intention to promote multilateralism and to open up even further. The changing international scenario also increases the risk to many OBOR projects, and legal certainty at a higher level is more important for China. The internal needs and external pressure both contribute to form China’s attitude towards the HCCH 2019 Judgments Convention. Against this background, this chapter examines the practical needs, legal compatibility and political necessity for China to ratify the HCCH 2019 Judgments Convention. Section II starts by analysing the current Chinese law on enforcing foreign judgments in China and the law to enforce Chinese judgments in other OBOR countries. It concludes that the status quo makes the enforcement of foreign judgments a big obstacle to achieving China’s OBOR ambition. Although China has worked hard to relax its current requirements in enforcing foreign judgments and attempts to lead other OBOR countries to make the same move, little progress has been made in practice. In contrast to the unilateral approach, utilising the existing international framework on foreign judgments would be a more effective and feasible option. Section III continues to discuss whether China is willing and able to join the Convention. China has made substantive contributions to it, which shows its interest in becoming a party. And the Convention is substantively compatible with the Chinese law and political system, making ratification practically possible. Section IV examines the current tension between China and the United States, and concludes that joining the Convention would be more important to China than before in the current political context. Section V concludes.

II.  Foreign Judgments in China and OBOR A.  From Strict to Flexible de facto Reciprocity Chinese law only permits recognition and enforcement of foreign civil and commercial judgments on two conditions: by treaty obligations and by reciprocity.5 Since China only entered into bilateral judgment treaties with 36 countries, the courts largely rely on reciprocity to enforce foreign judgments. China’s law on foreign judgments has been criticised widely by academic writers and practitioners.6 In particular, for a long time, in the absence of the legislative or judicial interpretation of ‘reciprocity’, Chinese judges relied on strict de facto reciprocity in enforcing foreign judgments. For example, Chinese courts had refused to enforce judgments from the United States, HKSAR and the Republic of Korea even after at least one Chinese judgment had already been enforced in the latter jurisdictions.7 It suggests many Chinese judges applied a high threshold to establish reciprocity and considered one, isolated, positive case not enough.8 This very strict practice not only prevents foreign judgments from being enforced in China, but also 5 PRC Civil Procedure Law (中国民事诉讼法) Art 282. 6 Zheng Sophia Tang, Yongping Xiao, Zhengxin Huo, Conflict of Laws in the People’s Republic of China (EEL 2016) ch 5; Wenliang Zhang, ‘Recognition and Enforcement of Foreign Judgments in China: A Call for Special Attention to Both the Due Service Requirement and the Principle of Reciprocity’ (2013) 12 Chinese Journal of International Law 143, 153–56; PJ Blazey and PS Gillies, ‘Recognition and Enforcement of Foreign Judgments in China’ (2008) 1 International Journal of Private Law 333. 7 Hubei Gezhouba Sanlian Industrial v Robinson Helicopter Company, 2009 WL 2190187 (CDCal); First Laser v Fujian Enterprises (Holdings) [2013] 2 HKC 459. However, it is unclear whether these positive cases were submitted to the Chinese courts by the applicants when seeking enforcement. See King Fung Tsang, ‘Enforcement of Foreign Commercial Judgments in China’ (2018) 14 Journal of Private International Law 262, 281–82. 8 Judgments from Australia, Germany, Japan, Korea, Malaysia, and the United Kingdom were refused recognition and enforcement in China. See RA Brand, ‘Recognition of Foreign Judgments in China: the Liu Case and the “Belt and Road” Initiative’ (2018) 37 Journal of Law & Commerce 29, 37.

China  299 causes retaliation in other countries adopting the same approach, as shown by a series of refusals of judgment enforcement between China and Japan.9 This situation is gradually changing in the context of the Belt and Road Initiative (OBOR). The OBOR was first announced by China’s President Xi Jinping in 2013.10 This initiative plans to build connectivity and regional cooperation connecting countries in Eurasia and Africa, with China as a hub.11 This plan also intends to be inclusive and ‘open to all countries, and international and regional organizations for engagement, so that the results of the concerted efforts will benefit wider areas’.12 With this grand map in mind, China needs to play the leading role, not only in terms of investment and infrastructure building, but also in terms of supporting institutions and cooperation facilitation. The international ambition demonstrated by the OBOR demands a more positive and effective mechanism for dispute resolution.13 China has the internal motive to open its judicial system to assist private parties participating in OBOR transactions to resolve disputes. Against this background, Chinese practice on foreign judgments has shown a clear relaxation. Although the law on foreign judgments has not been changed, the Supreme People’s Court (SPC) published a judicial opinion in 2015 (hereafter OBOR Opinion) to direct the Court to adopt a more flexible and positive attitude towards foreign judgments.14 Paragraph 6 of the OBOR Opinion states: The people’s courts shall strengthen international judicial assistance with countries along the ‘Belt and Road’ and effectively safeguard the lawful rights and interests of Chinese and foreign parties. They shall positively explore and strengthen regional judicial assistance, cooperate with the relevant departments in releasing the model texts of new-type judicial assistance agreements at appropriate time, promote the conclusion of bilateral and multilateral judicial assistance agreements, and promote the mutual recognition and enforcement of judgments rendered by countries along the ‘Belt and Road’. Under the circumstance where some countries have not concluded judicial assistance agreements with China, on the basis of the international judicial cooperation and communication intentions and the counterparty’s commitment to offering mutual judicial benefits to China, the people’s courts of China may consider the prior offering of judicial assistance to parties of the counter party, positively promote the formation of reciprocal relationship, and actively initiate and gradually expand the scope of international judicial assistance. The people’s courts shall, in strict accordance with the international treaties concluded between China and countries along the ‘Belt and Road’ or jointly participated in by them, actively handle such judicial assistance requests as service of judicial documents, investigation and evidence collection,

9 China denied reciprocity from Japan in Gomi Akira v Dalian Fari Seafood Co, Ltd, Dalian Intermediate People’s Court of Liaoning Province, 5 November 1994, and the SPC reply [SPC Gazette] Issue 1, 1996. As a response, Japanese courts refused Chinese judgments enforcement for the same reason in two cases (Osaka High Court, 9 April 2003, 1841 Hanrei Jiho 111; Tokyo High Court, 25 November, 2015, LEX/DB 25541803; for the first instance, Tokyo District Court, 20 March 2015). For more discussion, see Y Nishitani, ‘Coordination of Legal Systems by the Recognition of Foreign Judgments – Rethinking Reciprocity in Sino–Japanese Relationships’ (2019) 14 Frontiers of Law 193; Wenliang Zhang (n 6) 153–56. 10 Xi Jinping, 14 May 2017, ‘Work Together to Build the Silk Road Economic Belt and the 21st Century Maritime Silk Road’, the opening ceremony of the Belt and Road Forum for International Cooperation: news.xinhuanet.com/ english/2017-05/14/c_136282982.htm. 11 For discussion, see S Mahmud Ali, China’s Belt and Road Vision (Springer 2020) 69–121. 12 Nat’l Dev & Reform Comm’n, Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road, NRDC.GOV.CN (28 March 28 2015), available at: www.china.org.cn/china/Off_the_Wire/2015-03/28/ content_35182638.htm. 13 Brand (n 8) 39–45; Bin Sun, ‘The Future of Cross-Border Litigation in China: Enforcement of Foreign Commercial Judgments Based on Reciprocity’ (2018) 50 New York University Journal of International Law & Politics 1135, 1147. 14 Several Opinions of the Supreme People’s Court Concerning Judicial Services and Protection Provided by People’s Courts for the Belt and Road Initiative, [2015] Fa Fa No 9 (最高人民法院，《关于人民法院为 ‘一带一路” 建设提供司法服务和保障的若》干意见’》法发 [2015] 9号).

300  Zheng Tang and recognition and enforcement of judgments rendered by foreign courts, and provide efficient and convenient judicial remedies for the lawful rights and interests of Chinese and foreign parties.

This direction is not a ‘Judicial Interpretation’, but a policy direction to lower courts. It is not legally binding. Nevertheless, the instruction and guidance at the macro-level could affect the functioning of the local courts. A series of Chinese judgments gave favourable treatment to foreign judgments. Before the OBOR Opinion, the Wuhan Intermediate People’s Court in 2013 recognised a German judgment based on the fact that the Berlin High Court recognised a Chinese judgment in 2006.15 Following that, the Nanjing Intermediate People’s Court and the Wuhan Intermediate People’s Court recognised and enforced judgments delivered in Singapore and California respectively.16 In 2019, the Qingdao Intermediate People’s Court enforced a judgment from the Republic of Korea on the basis that the Seoul District Court recognised and had enforced a Chinese judgment back in 1999.17 Based on the same precedent, Shanghai No 1 Intermediate People’s Court recognised and enforced another South Korean judgment in 2020.18 Although these judgments were warmly welcomed and highly praised by commentators, they cannot suggest a fundamental change of foreign judgments recognition in China. In all these cases, the court still followed de facto reciprocity to enforce foreign judgments. However, the threshold to ascertain de facto reciprocity is no longer very high and can be satisfied by one positive precedent; irrespective of the type of case, the factual positive case is still a precondition.

B. From de facto to Presumed Reciprocity What has brought about the real change is the ‘Nanning Statement’. This is a statement made at the Second China–ASEAN Justice Forum in 2017. The Nanning Statement provides that: If two countries have not been bound by any international treaty on mutual recognition and enforcement of foreign civil or commercial judgments, both countries may, subject to their domestic laws, presume the existence of their reciprocal relationship, when it comes to the judicial procedure of recognizing or enforcing such judgments made by courts of the other country, provided that the courts of the other country had not refused to recognize or enforce such judgments on the ground of lack of reciprocity.19

The Nanning Statement proposed the ‘presumed reciprocity’ principle. This is a principle even more in favour of judicial cooperation than de jure reciprocity. De jure reciprocity requires the domestic law of the other country to be in the State that permits recognition and enforcement of foreign judgments as a matter of principle, irrespective of whether such a case exits. Presumed reciprocity does not need to review the content of the other country’s law, but simply presume that in the absence of negative precedent, the relation of reciprocity indeed exists. The Nanning Statement, however, is not binding either. It is not even a policy direction issued to the lower courts, but a diplomatic statement. It is more like a soft law that relies on participating 15 (2012) E Wuhan Zhong Minshang Wai Chu Zi No 16. 16 Kolmar Group AG v Jiangsu Textile Industry Import and Export Corporation (2016) Su 01 Xie Wai Ren No 3 (高尔 集团与江苏省纺织工业（集团）进出口有限公司申请承认和执行外国法院民事判决、裁定特别程序案》 (2016 苏01协外认3号); Liu Li v Tao Li & Tong Wu (2015) E Wuhan Zhong Min Shang Wai Chu Zi no 00026 (刘利诉陶莉 (2015)鄂武汉中民商外初字第00026号). Jie Huang, ‘Enforcing Foreign Monetary Judgments in China: Breakthroughs, Challenges, and Solutions in the Context of “One Belt One Road”’ (2019) 51 George Washington International Law Review 105. 17 The news is available at: www.chinacourt.org/article/detail/2019/03/id/3805592.shtml. The case number and name are not available. 18 (2019) Hu 01 Xie Wai Ren No 17 ((2019）沪01协外认17号). 19 Special Bulletin of the Supreme Court, Nanning Statement of the 2nd China–ASEAN Justice Forum, available at: supremecourt.gov.af/Content/files/Bulletin_81.pdf.

China  301 States adopting other regulatory domestic legal instruments to be effective. It is important to note that regardless of the overall policy in favour of enforcing foreign judgments, without the express clarification in law, some Chinese local courts continue to refuse to enforce foreign judgments by requesting de facto reciprocity. For example, in June 2017, Fuzhou Intermediate People’s Court refused to enforce Israeli judgments for lack of reciprocity though Israeli courts recognised a Chinese judgment in the past.20 It is unclear whether the Fuzhou Court knew the positive case existed. It nevertheless shows that the non-binding judicial direction and Nanning Statement do not have a significant impact in practice to systematically alter the traditional practice of local courts. In 2019, the SPC released the second OBOR Guidance, which clearly stated that ‘presumed reciprocity’ should be used to decide whether or not a foreign judgment is recognisable and enforceable.21 It is the SPC’s opinion that Chinese courts and applicants should be free from the burden of finding positive precedents or reviewing the law of the foreign country. Instead, the burden is shifted to the respondent to provide evidence that negative precedents existed to deny reciprocity. Nevertheless, the 2019 Opinion suffers from the same lack of strict binding effect. It is thus unclear how the 2019 Opinion may truly impact judicial practice in China. Until now, no Chinese court has ever adopted ‘presumed reciprocity’ in practice. There is no doubt, from the policy perspective, that the proposed presumed reciprocity per se is a positive sign.22 The problem is, its real effect in practice may take time to show. Being aware of the lack of necessary impact of policy documents providing macro guidance, the SPC is now in the process of drafting a more formal, binding judicial interpretation entitled ‘Regulation on Several Problems about Recognition and Enforcement of Foreign Civil and Commercial Judgments’.23 The draft Regulation proposes a more flexible alternative approach to reciprocity. Reciprocity may be deemed to exist in three circumstances: (1) the foreign court has precedent to recognise and enforce Chinese judgments; (2) the foreign country’s law or unilateral promise allows recognition and enforcement of Chinese judgments in the same circumstances; (3) the foreign country and China have reached a consensus to presume the existence of reciprocity.24 This draft provides three alternatives, combining de facto, de jure and presumed reciprocity, whichever would satisfy the reciprocity requirement. This arrangement further lowers the threshold to prove reciprocity. However, it is unclear how long it will take for this draft to crystallise and finally enter into force.

C.  Recognition and Enforcement of Chinese Judgments in OBOR Countries China also is interested in having its judgments enforced abroad. To fulfil its OBOR ambition, China established two international commercial courts (ICCCs) in Shenzhen and 20 Application by SL Jonas Ltd to Recognise the Israeli Civil Judgment (2017) Min 01 Xie Wai Ren No 4 (艾斯艾洛乔纳斯有限公司（SL Jonas Ltd) 申请承认以色列国耶路撒冷裁判法院民事裁定书 (2017）闽01协外认 4号民事裁定). 21 The Opinions of the SPC Regarding the People’s Court’s Further Provision of Judicial Services and Guarantees for the Construction of the Belt and Road, Fa Fa [2019] 29 (《‘关于人民法院进一步为“一带一路”建设提供司法服务和保障 的意见’ 》,法发[2019]29号) para 24. 22 Jiangyu Wang, ‘Dispute Settlement in the Belt and Road Initiative: Progress, Issues, and Future Research Agenda’ (2020) 8 Chinese Journal of Comparative Law 4, 14. 23 The text is not available to the public. 24 The Sixth Draft of the Regulation in 2017, Art 17.

302  Zheng Tang Xi’an respectively.25 These courts offer a ‘one-stop’ service to resolve international commercial disputes arising out of the OBOR. In order to work effectively, judgments rendered by ICCCs require recognition and enforcement in other OBOR countries. China has only entered into bilateral judicial cooperation treaties with 28 OBOR countries.26 This is a small proportion in contrast to the 65 countries participating in the OBOR. The majority of OBOR countries that have not yet entered into judgments agreements with China will rely on domestic laws to recognise and enforce Chinese judgments. Some OBOR countries have already modernised their domestic private international law, by abolishing reciprocity and adopting prerequisites to enforce foreign judgments.27 But more make reciprocity the prerequisite to enforce foreign judgments.28 Although China has led the ASEAN countries to declare their commitment to ‘presumed reciprocity’, this is not enough to change the whole picture. First, the Nanning Declaration is non-binding. Second, even if China has taken the first move to adopt ‘presumed reciprocity’ as a binding rule in its domestic law, it may not be enough to encourage other countries to follow in order to form a positive reciprocal relationship with China. If other OBOR countries continue to adopt the de facto reciprocity approach, unless Chinese courts actually have the chance to recognise judgments rendered by these courts first, de facto reciprocity cannot be established. It is also necessary to note that the ‘presumed reciprocity’ approach would only presume the reciprocal relationship between China and another country if there is no negative precedent to refuse enforcing Chinese judgments by the courts of the other country. In other words, if a country employs de facto reciprocity, and it happens that it receives an application to enforce Chinese judgments before Chinese courts have the chance to set up a positive precedent, the court of this country may have to decline enforcement. This would become a negative case and effectively hamper China’s attempt to build reciprocity though the presumed reciprocity approach. It is important to recall that the purpose of reciprocity is to assist different countries to form a mutually beneficial relation by the ‘tit-for-tat’ approach.29 However, the inherent flaw of this mechanism may easily hamper the final goal. In the absence of any pre-existing mutual beneficial relations, reciprocity can only work if one State is ready to make the first move and bear the short-term loss, and other States are willing to respond to the signal sent by the first State to follow.30 In the context of OBOR, China is willing to make the first move. However, although China has repeatedly suggested a ‘relaxation’ of reciprocity, it has no intention of abolishing it.

25 See, in general, Sheng Zhang, ‘China’s International Commercial Court: Background, Obstacles and the Road Ahead’ (2020) 11 Journal of International Dispute Resolution 150. The information of the ICCC is available at: cicc.court.gov.cn/ html/1/219/index.html. 26 Ethiopia, Bosnia and Herzegovina, Kuwait, Algeria, Peru, Lithuania, Laos, Tunisia, Vietnam, Morocco, Tajikistan, Uzbekistan, Kyrgyzstan, Hungary, Greece, Cyprus, Turkey, Kazakhstan, Bulgaria, Egypt, Italy, Cuba, Ukraine, Belarus, Russia, Romania, Mongolia, Poland. The profile of all OBOR countries is available at: www.yidaiyilu.gov.cn/xwzx/ roll/77298.htm. 27 Such as Poland, Venezuela, Lithuania, South Africa. For a South Africa approach, see Weidong Zhu, ‘Enforcing Commercial Judgments between China and South Africa in the Context of BRICS and BRI’ (2021) 65 Journal of African Law 179, 187. 28 Such as Azerbaijan, Bangladesh, Bahrain, Belarus, Croatia, Hungary, Israel, Iraq, Jordan, Kazakhstan, Korea, Kuwait, Malaysia, Moldova, Oman, Pakistan, Philippines, Qatar, Russia, Serbia, Saudi Arabia, Slovenia, Ukraine, the UAE. See Zheng Sophia Tang, ‘The Belt and Road and Cross-Border Judicial Cooperation’ (2019) 49 Hong Kong Law Journal 121, 143–44, fn 151. 29 DJ Robinson, ‘US Enforcement of Foreign Judgments, Libel Tourism, and the Speech Act’ (2012) 21 Transnational Law & Contemporary Problems 911, 922; F Parisi and N Ghei, ‘The Role of Reciprocity in International Law’ (2003) 36 Cornell International Law Journal 93; Zheng Tang, ‘International Judicial Cooperation in Game Theory’ (2020) 11 Journal of International Dispute Settlement 522, 532–35. 30 Tang, ibid, 534–35.

China  303 Although other States indeed participate in the OBOR, they do not necessarily have the same strong motive to cooperate like China. They may follow the Chinese steps to lower the threshold to enforce foreign judgments, but there may be delay, reluctance, or reservation. China’s insistence of reciprocity, though in a more flexible form, demonstrates that China is not ready to bear too much loss if other countries fail to respond positively to its cooperative signals. The lack of trust, lack of confidence and lack of coordination may lead to the failure of the unilateral approach adopted by China.

III.  China and the HCCH 2019 Judgments Convention China’s unilateral approach cannot promote effective judicial cooperation and dispute resolution among OBOR countries. It is also inefficient for China to enter into multiple bilateral judicial cooperation treaties with other OBOR countries, which causes negotiation difficulties, extra expenses, inconsistencies in the network of treaties, and complexity in practice. An international framework is thus more appropriate and effective to serve China’s OBOR ambitions.

A.  HCCH 2019 Judgments Convention and China’s Contribution China takes the HCCH 2019 Judgments Convention seriously. China participated in the full negotiation process, and acted as a vice chair of all the Special Commissions and the Diplomatic Sessions.31 China’s delegation’s performance in the negotiation has been praised by commentators as being ‘most active and constructive’.32 The Chinese contribution has been identified to include the following achievements. First, the Preamble reflects the Chinese delegation’s proposal to include the term ‘multilateral’. It states the Contracting States’ desire ‘to promote effective access to justice for all and to facilitate rule-based multilateral trade and investment, and mobility, through judicial co-operation’. It reflects China’s standing for multi-polarisation and objection to unilateralism and protectionism.33 Second, China opposed the proposal that the existing Contracting States have the power to veto the application to accession of new members based on sovereign equality and nondiscrimination. Given some States’ insistence in controlling their treaty partners concerning the quality of some countries’ justice systems, the final Convention adopts the reciprocal opt-out clause to allow both new and existing Contracting States to opt-out establishing treaty relations with a particular state in reciprocal basis.34 Third, China bridged the gap between different countries in negotiating the scope of the Convention. China’s contribution in reaching consensus on competition issues has been remarked upon as significant and crucial.35 Some delegations argued that the private enforcement of competition law was similar to other tort proceedings and its objective was similar in most countries at the global level, thus supported a full inclusion. Other delegations favoured a complete

31 Sun Jin and WU Qiong, ‘The Hague Judgments Convention and How We Negotiated It’ (2020) 19 Chinese Journal of International Law 481, 485. 32 ibid, 485. 33 ibid, 486. 34 ibid, 487–89. 35 Beaumont (n 2) 135.

304  Zheng Tang exclusion based on the strong public interest characteristics of competition enforcement.36 China did not have a strong view on this matter, but acted constructively to find a solution that might satisfy both groups, and finally the proposal to include limited private anti-trust proceedings with a further territorial proximity was accepted in the final text that helped to prevent the spillover effect of enforcing foreign competition judgment.37 These above examples show that China’s active involvement in the negotiation of the HCCH 2019 Judgments Convention serves multiple purposes: declaration, consensus seeking and protection. China used the opportunity to restate and declare China’s international policy to the international community. In areas where China does not have strong views, China worked hard to build consensus between different delegations. In other areas where China did have interests to protect, Chinese delegations firmly upheld their position and carefully manoeuvred the negotiations to reflect their standing. However, China did it in a strategic and cooperative manner to be open to alternatives that can accommodate both China’s and other countries’ needs. China’s active involvement contributed to the successful conclusion of the Convention. Although it is still unclear whether and when China will eventually sign and ratify this Convention, the active contribution at least helps to smooth the legal barriers to China’s potential future participation.

B.  Compatibility of the HCCH 2019 Judgments Convention with Chinese Law i.  One Country, Two Systems The HCCH 2019 Judgments Convention is compatible with the current political and legal environment in China. China is a country composed of four regions, ie the Mainland, Hong Kong, Macao and Taiwan.38 According to Article 25, a Contracting State can make a declaration as to whether the Convention will apply to all its territorial units. This is consistent with China’s ‘One Country Two Systems’ policy. Pursuant to the Basic Laws of HKSAR and MSAR, after the reunification, the central government has the sole power to enter into international treaties in relation to foreign affairs or defence, which applies to the entire country including those units. As to international treaties not involving foreign affairs or defence, the central government can decide whether the treaties shall expand to Hong Kong and Macao, after consulting their views. The HCCH 2019 Judgments Convention may not be classified as a Convention involving foreign affairs or defence, and the central government can decide whether it should expand to Hong Kong and Macao. Judging from the fact that the delegates from Hong Kong and Macao were included in the Chinese delegation for the negotiations, and the fact that Hong Kong will be the important financial hub to facilitate connectivity and investment in the OBOR countries,39 it may be in the interests of the Mainland, and HKSAR and MSAR, to extend the effects of the Convention to both SARs.40 36 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 69. 37 Sun and Wu (n 31) 497–98; Garcimartín and Saumier (n 36) para 69. 38 As to the situation in Taiwan, see United Nations General Assembly Resolution 2758. 39 See Hong Kong Trade Development Council (HKTDC), ‘Building Hong Kong into a Soft Power Hub for the “Belt and Road”’ (13 June 2017), available at: beltandroad.hktdc.com/en/insights/building-hong-kong-soft-power-hub-belt-and-road. 40 Wenliang Zhang and Guangjian Tu, ‘The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation’ (2021) 20 Chinese Journal of International Law, para 39. China deposited a declaration of extension of the territorial application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) to the HKSAR, taking effect on 1 December 2022.

China  305 In terms of the internal/interregional conflicts between the mainland, Hong Kong and Macao, China has entered into a judicial cooperation arrangement with HKSAR41 and MSAR.42 If China indeed signs and ratifies the HCCH 2019 Judgments Convention, China is not bound to apply the Convention to situations between its internal units.43 Instead, China should be able to autonomously decide whether the Convention shall be extended to the enforcement of judgments between its internal units, or continue to rely on the combination of internal arrangements and unilateral laws of each unit to deal with interregional cross-border enforcement requests in China. Although, in theory, to subject the interregional judicial cooperation to the international framework may prove more effective than relying on complicated domestic law including conflicts of laws in each unit in China and making more bilateral arrangements,44 leaving this decision exclusively to the Contracting Party respects States’ autonomy in handling its internal affairs, which is crucial to China. It also suggests that China has the flexibility to apply the HCCH 2019 Judgments Convention between a few of its territorial units but not others.45 This flexibility is very much needed in regard to the Mainland–Taiwan relation. It is de facto impossible for the central government in China to make a decision to apply the HCCH 2019 Judgments Convention in Taiwan. Furthermore, Article 22(3) of the Convention clarifies that, even if this Convention indeed applies between different territorial units in one country, recognition and enforcement of a judgment from another Contracting Party by one territorial unit does not suggest other units need to act the in the same way towards the judgments of that same Contracting Party. In other words, it grants independent decisions to the courts in each territorial unit. This could work particularly well in China, taking into account the difference between its four units in terms of law, tradition and culture. In particular, there has been the lack of trust between those units, especially between Hong Kong and the Mainland.46 Article 22(4) suggests that the HKSAR courts could act independently in deciding whether another Contracting Party’s judgment is recognisable under the Convention irrespective of the decisions already made by the mainland courts; and vice versa. This helps to maintain the confidence of both HKSAR and the mainland to preserve their public interests and to remove the potential obstacle for China to ratify the Convention.

ii.  State Immunity and State–Owner Enterprises China adopts strict immunity and does not accept court proceedings against foreign States, governments or State agencies.47 However, China has an important exemption to this strict rule 41 Arrangement between the Mainland and the HKSAR on Reciprocal Recognition and Enforcement of the Decision of Civil and Commercial Cases, 2006; second Arrangement on reciprocal recognition and enforcement of civil judgments in matrimonial and family cases on 20 June 2017; third Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters on 18 January 2019. 42 Arrangement on the Mutual Recognition and Enforcement of Civil and Commercial Judgments with the Macao Special Administrative Region, 2006. 43 Art 22(2) HCCH 2019 Judgments Convention. 44 Given the fact that the Mainland–HK 2019 Arrangement includes very similar rules to the HCCH 2019 Judgments Convention, applying both to enforcement requests between HK and the mainland may not cause serious difficulties. Zhang and Tu (n 40) para 36. 45 Art 25(1). 46 Yanhong Yin and Irene Wieczorek, ‘What model for extradition between Hong Kong and Mainland China? A  comparison between the 2019 (withdrawn) amendment to Hong Kong extradition law and the European Arrest Warrant’ (2020) 11 New Journal of European Criminal Law 504, 504–13. 47 Dahai Qi, ‘State Immunity, China and Its Shifting Position’ (2008) 7 Chinese Journal of International Law 307; Standing Committee of the National People’s Congress, ‘Interpretation of the Standing Committee of the National People’s Congress on Paragraph 1, Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative

306  Zheng Tang in that State-owned enterprises (SOEs) do not enjoy State immunity in order to engage in the international trade scheme.48 SOEs are playing an important role in the OBOR initiative. It is in China’s interests to maintain the normal exemption to judgments against States, governments or state agencies, acting on their own behalf or representing a State, and at the same time to include SOEs in the scope of this Convention. Article 2(4) of the final version of the HCCH 2019 Judgments Convention explicitly addresses judgments where a State, including a government, a government agency or any person acting for a State, was a party. Article 2(5) states that the Convention does not affect State immunity. And Article 19 permits a State to declare a reservation to apply the Convention to judgments where a State is a party. In particular, Article 19 is framed in a way that ensures that such a declaration is not going to apply to SOEs. It clearly states that the declaration can only be made to judgments where ‘state, or a natural person acting for that state’, or ‘a government agency of that state, or a natural person acting for such a government agency’ is a party. The specification of a ‘natural person’ suggests that the reservation cannot be applied to legal persons, thus excluding SOEs from the reservation. The result is consistent with China’s perspective: China could rely on Article 19 to maintain strict immunity to States and at the same time keep SOEs within the scope of the Convention.

iii.  Indirect Jurisdiction and Chinese Law The content of the HCCH 2019 Judgments Convention is also compatible with Chinese law. The indirect jurisdiction of the Convention includes most direct jurisdictional grounds in Chinese law where Chinese courts may assert jurisdiction in a cross-border dispute. In China, international jurisdiction is listed in Article 265 of the Civil Procedural Law. In general, Chinese courts may take jurisdiction if the defendant has its residence in China; if the contract was signed or performed in China; if the subject matter of the dispute is located in China; if the defendant has distrainable assets in China; if the defendant has representative entities in China; if the tort action was committed in China.49 Furthermore, China has exclusive jurisdiction for Sino–foreign joint venture contracts, Sino–foreign cooperative contracts, and Sino–foreign joint exploration of natural resources contracts.50 Most of these have corresponding grounds in the Convention. Table 1  Jurisdiction Grounds: Chinese Law and HCCH 2019 Judgments Convention in Comparison China

HCCH 2019 Judgments Convention

Defendant has domicile or habitual residence in China (Art 22 and Art 265)

Defendant is a habitual resident in the State of origin (Art 5(1)(a))

Defendant has a representative in China (Art 265)

Defendant maintains a branch, agency, or other establishment without separate legal personality in the State of origin (Art 5(1)(d))

Parties’ choice of court (Art 34)

Defendant expressly consented to the jurisdiction of the court of origin (Art 5(1)(e)) (continued)

Region of the People’s Republic of China’ (全国人民代表大会，关于《中华人民共和国香港特别行政区基本法》第 十三条第一款和第 十九条的解释), 26 August 2011, available at: www.gov.cn/jrzg/2011-08/26/content_1934065.htm. 48 Dahai Qi (n 47) 325–26. 49 Art 265 of the Civil Procedure Law. 50 Art 266 of the Civil Procedure Law.

China  307 Table 1  (Continued) China

HCCH 2019 Judgments Convention

Defendant argued on the merits without contesting jurisdiction (Art 127)

Defendant argued on the merits before the court of origin without contesting jurisdiction (Art 5(1)(f))

Place of performance of a contract (Art 265)

State in which performance of that obligation took place (Art 5(1)(g))

Exclusive Jurisdiction: Sino–foreign joint venture contract, Sino–foreign cooperative contract and Sino–foreign cooperative exploration of natural resources contract performed in China (Art 266) Place where the immovable property is situated (Art 33(1))

State in which the immovable property is situated (Art 5(1)(h) and (i))

Place of tort action (Art 265)

Act or omission directly causing harm occurred (Art 5(1)(j)

Choice of court agreement (Art 34)

Judgment was given by a court designated in an agreement (Art 5(1)(m)) *exclusive jurisdiction agreements are covered in the HCCH 2005 Choice of Court Convention

Place of contracting (Art 265) Place where the subject matter of dispute is situated in China (Art 265) Place of distrainable assets of the defendant (Art 265)

Table 1 above shows that most jurisdiction grounds in Chinese law are covered as indirect jurisdiction in the Convention. It means most Chinese judgments are eligible for recognition and enforcement under the Convention. However, exceptions exist. Chinese law permits the court to exercise international jurisdiction if the contract is concluded in China, the subject matter of the dispute is situated in China and the defendant has distrainable assets situated in China.51 These connecting factors are not included in the indirect jurisdictional grounds in the Convention, which suggests that Chinese judgments based on these jurisdiction grounds will not be eligible for recognition and enforcement under the Convention. However, three points need to be noted. First, in practice, these three jurisdictional grounds are used very rarely by Chinese courts. None of the published cases relied solely on one of these three grounds to exercise jurisdiction.52 Second, Chinese law adopts some of these grounds for pragmatic reasons. Enforcing foreign judgments in China is difficult in current Chinese law.53 The grounds based on the location of the assets and subject matter of the dispute are designed for the convenience of enforcement. If a cross-border dispute needs to be enforced in China, it is preferable for the parties to directly sue in China rather than bring actions abroad and seek enforcement in China.54 If China eventually joins the HCCH 2019 Judgments Convention and removes the obstacles for enforcing foreign judgments, it may no longer be necessary to keep these 51 Art 265 of the Civil Procedure Law. 52 Although China has no systematic case report system, the recent judicial reform that makes transparency one of its aims indeed improves the accessibility of Chinese judgments. Published cases are available at: wenshu.court.gov.cn. 53 See section II above. 54 The impact of enforcement on jurisdiction has been discussed in Zheng Sophia Tang, ‘Effectiveness of Exclusive Jurisdiction Clauses in the Chinese Courts: A Pragmatic Study’ (2012) 61 ICLQ 459.

308  Zheng Tang jurisdiction grounds in Chinese law. Third, China has, through its judicial practice and interpretation, adopted a simplified forum non conveniens approach.55 A Chinese court can decline jurisdiction if the main disputed facts occurred outside China, Chinese law is not the applicable law, and a foreign court is more convenient to adjudicate this dispute.56 It is likely that where the sole connection between the dispute and China is that China is the place of contracting or the place where the defendant has its distrainable assets, the Chinese courts may decline jurisdiction for procedural inconvenience. It is thus suggested that these discrepancies are not fundamental or serious enough to prevent China from joining the HCCH 2019 Judgments Convention.

iv.  Refusal Grounds and Chinese Law To ratify the HCCH 2019 Judgments Convention, China also needs to consider its obligation under the Convention to recognise and enforce foreign judgments. China needs to assess whether the Convention provides sufficient safeguards for China’s national interests and could refuse enforcing foreign judgments when necessary. China’s attitude to what may be sufficient safeguards can be deduced from its domestic law and from the bilateral treaties that China has signed. Chinese courts may refuse recognition or enforcement of eligible foreign judgments for of six reasons:57 (1) the original court has no jurisdiction;58 (2) judgment is not effective in the State of origin;59 (3) defendants are deprived of the right to defend;60 (4) the judgment is irreconcilable with an earlier judgment on the same subject matter that has already been recognised;61 (5) the same proceedings are pending in China which commenced earlier than the proceedings in the country of origin;62 and (6) the judgment infringes China’s basic principles of law, sovereignty, security and social-public interests.63 These grounds are all available in the HCCH Judgments 2019 Convention. Table 2  Refusal Grounds: China and the HCCH 2019 Judgments Convention in Comparison China64 Original courts have no jurisdiction

HCCH 2019 Judgments Convention Indirect jurisdiction filter (Art 5) The proceedings were contrary to a choice of court agreement (Art 7(1)(d)) (continued)

55 SPC, Interpretation of the Application of the PRC Civil Procedure Law, Fa Shi [2015] No 5 (最高人民法院关于适 用《中华人民共和国民事诉讼法》的解释，法释[2015]5号) Art 532. More discussion can be found in Zheng Sophia Tang, ‘Declining Jurisdiction by Forum Non Conveniens in Chinese Courts’ (2015) 45 Hong Kong Law Journal 351. The current threshold is very high but Chinese legislator and SPC are considering adopting a more flexible approach on forum non conveniens. 56 Art 532 of the Interpretation of the SPC on the Application of the Civil Procedure Law of the PRC 2015 (Civil Procedure Law Interpretation), Fa Shi [2015] No 5 (最高人民法院关于适用《中华人民共和国民事诉讼法》的解释, 法释[2015] 5号). 57 Eligible judgments refer to judgments that have already met the prerequisites for JRE, ie, there is a bilateral treaty and reciprocity. These reasons are drawn from Chinese Civil Procedure Law, Interpretation of Civil Procedure Law and bilateral judicial cooperation treaties. Since most treaties include nearly identical terms, this article only uses China–Italy treaty as an example. 58 China–Italy Civil Judicial Cooperation Treaty, effective from 1 January 1995, Art 21(1). 59 Art 21(2). 60 Art 21(3). 61 Art 21(4). 62 Art 21(5). Art 53s of the Civil Procedure Law Interpretation. 63 Art 282 of the Civil Procedure Law. China–Italy Civil Judicial Cooperation Treaty, Art 21(6). 64 These grounds are not listed in one legal instrument but summarised from multiple bilateral treaties concluded between China and foreign countries. This table will not show Article numbers for each of the grounds.

China  309 Table 1  (Continued) China64

HCCH 2019 Judgments Convention

Judgment is not effective in the State of origin

A judgment shall be recognised only if it has effect in the State of origin, and shall be enforced only if it is enforceable in the State of origin (Art 4(3))

Defendant is deprived of the right to defend

Defendant is deprived of the right to defend (Art 7(1)(a))

Irreconcilable judgments with an earlier judgment

Judgment is inconsistent with an earlier judgment (Art 7(1)(e) and (f))

Proceedings on the same subject matter were commenced earlier and are pending in China

Proceedings on the same subject matter were commenced earlier and are pending before the requested State (Art 7(2))

Judgment infringes China’s public policy

JRE is manifestly incompatible with the public policy of the requested State (Art 7(1)(c)) Judgment was obtained by fraud (Art 7(1)(b))

Therefore, by applying the Convention, China reserves all refusal grounds that currently exist in its domestic law and bilateral treaties. Notably, the interpretation of some refusal grounds may differ between the Convention and Chinese law. A typical example is the public policy defence. Chinese law uses ‘China’s basic principles of law, sovereignty, security, and social-public interests’ to refer to public policy. The broad ‘social-public interests’ may include matters that are not consider public policy by many other countries.65 Chinese legislation does not use the language ‘manifestly’ or similar terms to show that the public policy defence may only be supported in exceptional circumstances. However, the more recent judicial practice of enforcing foreign arbitral awards under the New York Convention shows that Chinese courts have now adopted a more restrictive interpretation to the public policy exception and supports the public policy defence very rarely.66 Finally, China may choose reservations in particular matters on which it does not wish to apply this Convention. One possible area for unwillingness is in those matters that are subject to China’s exclusive jurisdiction. Exclusive jurisdiction usually shows a State’s unilateral assertion of power of a matter that it deems important to its national interests and it would not be willing to cooperate with other States in judicial proceedings. The HCCH 2019 Judgments Convention only expressly recognises one exclusive jurisdiction, which is jurisdiction on rights in rem in immovable property.67 However, there are other matters covered by exclusive jurisdiction in Chinese law, 65 Mo Zhang, Chinese Contract Law: Theory and Practice (Martinus Nijhoff 2006) 180. A typical example is the following: in 1995, the enforcement of a foreign arbitral award was denied because it concerned a contract to perform heavy metal music, which was deemed contrary to Chinese culture and social interests. Reply by the SPC about the Request for Instruction from the Beijing Municipality No 1 Intermediate People’s Court for Non-Enforcement of Arbitral Award on the Contractual Dispute between the US Productions and Tom Hulett and China Women Travel Service, Ta [1997] 35 (最高人民法院关于北京市第一中级人民法院不予执行美国制作公司和汤姆·胡莱特公司诉中国妇女旅行 社演出合同纠纷仲裁裁决请示的批复 他[1997] 35号); Request for Approval of the Beijing Higher Court’s Decision not to Enforce the Arbitral Award on the Contractual Dispute between the US Productions and Tom Hulett and China Women Travel Service, Jing Tao Fa [1996] 239 (关于同意北京市第一中级人民法院不予执行美国制作公司、汤姆·胡莱特公 司诉中国妇女旅行社演出合同仲裁裁决请示的请示, 京高法[1996] 239号). 66 P Rossi, ‘Public Policy and Enforcement of Foreign Awards: An Appraisal of China’s Judicial Practice’ (2017) 31 Diritto Del Commercio Internazionale 299, 230; Shen Wei and Shang Shu, ‘Tackling local protectionism in enforcing foreign arbitral awards in China: an empirical study of the SPC’s review decisions 1995–2015’ (2020) 241 China Quarterly 144. 67 Art 6 of the Hague Judgments Convention.

310  Zheng Tang but not in the Convention. For example, China has exclusive jurisdiction over Sino–foreign joint venture contracts, Sino–foreign cooperative contracts and Sino–foreign cooperative exploration of natural resources contracts performed in China.68 It is true that these contracts would have the closest connection with China. However, other countries may be able to take jurisdiction under their domestic law, based on the defendant’s consent, the parties’ choice, the defendant’s domicile, etc.69 If China ratifies the Convention, it would have to recognise and enforce judgments made by the courts of other Contracting States on these matters, unless a reservation is made. It is up to China to decide whether to update its domestic law, or to make declarations under Article 18 of the HCCH 2019 Judgments Convention.

IV.  HCCH 2019 Judgments Convention and China–US Tension The HCCH 2019 Judgments Convention may be more important to China in the current context of China–US tension. A few years back, China and the United States were moving in a more promising direction on which to build a more collaborative and reciprocal relationship in enforcing each other’s judgments. The United States has enforced four Chinese judgments with the latest ruling on 6 January 2020,70 and Chinese courts have enforced three US judgments with the latest in December 2020.71 Although this positive trend continued throughout 2020, the China–US relationship deteriorated in 2018, and was accelerated in 2019 after the Covid-19 pandemic. One obvious regression is in the recent decision of the Supreme Court of New York in Shanghai Yongrun Investment Management Co v Kashi Galaxy Venture Capital Co.72 In this case the Court refused to enforce Chinese judgments for the systematic lack of ‘impartial tribunals or procedures compatible with the requirements of due process of law’.73 The text of Article 5304(a) of the New York Civil Practice Law and Rules (CPLR), which mirrors the 1962 Uniform Foreign Money-Judgments Recognition Act, provides that a ‘foreign country judgment is not conclusive if: 1. the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law’. The New York Supreme Court held that the provision addresses the entire system instead of the particular litigation.74 68 Art 266. 69 See, in general, H Christian and AW Schulze, ‘Private international law and jurisdictional problems relating to offshore joint venture agreements’ (1995) 28 Comparative & International Law Journal of Southern Africa 383. 70 Hubei Gezhouba Sanlian Indus Co v Robinson Helicopter Co, No 2:06-CV-01798-FMCSSX, 2009 WL 2190187 (CD Cal 22 July 2009), aff ’d, 425 F App’x 580 (9th Cir 2011) (the US District Court for the Central District of California recognised and enforced a judgment rendered by the High People’s Court of Hubei Province); Glob Material Techs, In v Dazheng Metal Fibre Co, No 12 CV 1851 (ND Ill 1 May 2015) (the US District Court for the Northern District of Illinois recognised and enforced a judgment rendered by Zhuhai Intermediate People’s Court, Guangdong Province); Qinrong Qiu v Hongying Zhang et al (2:2017cv05446) (the US District Court for the Central District of California recognised and enforced a judgment rendered by the Suzhou Industrial Park People’s Court of Suzhou Municipality, Jiangsu Province); Huizhi Liu v Guoqing Guan & Xidong Fang (713741/2019) (the New York Supreme Court Queens County recognised and enforced a judgment rendered by the Xiangzhou Primary People’s Court of Zhuhai Municipality, Guangdong Province). 71 Liu Li v Tao Li & Tong Wu (2015) E Wuhan Zhong Min Shang Wai Chu Zi no 00026; Shanghai, No 1 Intermediate People’s Court, (2017) Hu No 1 Xie Wai Ren No 16; Zhejiang Province Ningbo Intermediate Peoples Court (2018) Zhe 02 Xie Wai Ren No 6; Guangdong Province, Guangzhou City Intermediate People’s Court (2019) Yue 01 Xie Wai Ren No 3; Guangdong Province, Guangzhou Intermediate People’s Court (2019) Yue 01 Xie Wai Ren 21, 26, 27, 28 and 32; (2019) Yue 01 Xie Wai Ren No 58; Guangdong Province, Guangzhou City Intermediate People’s Court (2019) Yue 01 Xie Wai Ren No 22. 72 Shanghai Yongrun Inv Mgt Co, Ltd v Kashi Galaxy Venture Capital Co, Ltd, 2021 NY Slip Op 31459(U) 30 April 2021. 73 P.6. CPLR 5304(a)(1). 74 Para 7.

China  311 This decision is extraordinary in that it is the first judicial decision refusing to enforce a Chinese judgment on the ground of systematic lack of judicial independence. This decision is very controversial. First, it suggests that a court may refuse to enforce foreign judgments based on the overall profile of a country’s judicial system, instead of on the specific situation of the case in question. However, an assessment of an overall system of a country cannot demonstrate that the case in particular proceedings definitely acquires the same quality. For example, a country’s judicial system may have a good reputation, but this overall situation cannot guarantee procedural justice in every single case, and while this country’s judgment seeks recognition and enforcement abroad, the same judicial review of a fair and independent trial is required. The situation can be more complicated in China. In China, the judicial system operates under the lead of the Chinese Communist Party (CCP). However, it is fairly rare and unacceptable for the CCP or a government official to directly exert micro-control of individual cases. Instead, the Party’s lead is rather at a more macro and abstract level through publishing guidance and policy papers.75 As a matter of fact, China has gone through a series of judicial reforms to promote independence of the judicial system from local government. The fact that the Chinese judicial system is subject to the macro-supervision of the CCP does not suggest that each single judgment is tainted by their direct influence, and thus lacks independence and impartiality. Furthermore, the New York Supreme Court’s decision could lead to an unjustifiable negative impact. It may lead to all future Chinese judgments not being recognisable or enforceable in US courts. As a consequence, US judgments may not be enforceable in China according to the principle of reciprocity, causing difficulties for international transactions between these two countries. Fortunately, the New York Appellate Division reversed this decision insisting that what matters should be the legal system governing a particular case.76 This decision is obviously consistent with the ruling of other countries77 and the HCCH 2019 Judgments Convention. Article 7(1) of the Convention lists limited grounds for refusal, including ‘the judgment was obtained by fraud’,78 and ‘recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’.79 Both ‘the judgment’ and ‘the specific proceedings leading to the judgment’ refer to the particular underlying proceedings instead of the entire system. This would prevent more ‘political decisions’ in relation to Chinese judgments and, under this framework, the court will have to consider evidence suggesting the quality and justice of the proceedings in each single case. This is a reason why, more than before, China may need to ratify this Convention. Joining the international judgments framework would tear open the iron curtain that the United States may put down to block China in its decoupling attempt. If China becomes a Contracting Party, would the United States refuse to ratify this Convention if it wants to decouple with China? The answer may likely be negative. It is necessary to note that the international judgments project was initiated by the United States to remove the obstacles preventing US judgments from acquiring global recognition.80 It is also in US interests to enter into an international convention instead 75 Ling Li, ‘The Chinese Communist Party and People’s Courts: Judicial Dependence in China’ (2016) 64 American Journal of Comparative Law 37, 66–72; Zheng Tang, ‘Judicial enforcement of intellectual property rights in China: from technical improvement to institutional reform’ (2019) 27 Asia Pacific Law Review 176, 194–96. 76 Shanghai Yongrun Inv Mgt, Ltd v Maodong Xu, 2022 NY Slip Op 01523. 77 Hebei Huaneng v Deming Shi B [2020] NZHC 2992. 78 Art 7(1)(b) (emphasis added). 79 Art 7(1)(c) (emphasis added). 80 See Letter from Edwin D Williamson, Legal Advisor, US Department of State, to Georges Droz, Secretary General, Hague Conference on Private International Law (5 May 1992), available at: 2009-2017.state.gov/documents/organization/65973.pdf.

312  Zheng Tang of multiple bilateral conventions because of the procedural difficulty in ratifying treaties.81 It is to the United States’ disadvantage if it stays away from the HCCH 2019 Judgments Convention simply because China is a party.

V. Conclusion Joining the HCCH 2019 Judgments Convention is strategically important to China. First, a successful international judgments framework could benefit China and support its grand OBOR project. China’s participation in the Convention can project its influence to other OBOR countries that may in return encourage more countries to join the Convention. This will form a virtuous circle. There is no significant legal barrier or incompatibility that may prevent China from joining the Convention. Second, in response to US new China policy, remaining open and cooperative in international multilateral instruments is the best way to promote China’s national interests. In conclusion, China may need the Convention more than ever and the promotion of the Convention will also benefit from China’s ratification. However, the importance of the HCCH 2019 Judgments Convention to China should not be exaggerated. The Convention is relatively new and it will take a long time for it to be accepted by a large number of States to exert the full effect. Taking the HCCH 2005 Choice of Court Convention as an example, this Convention was adopted almost 20 years ago. Since then, it has only had 32 Contracting States and 37 signatories including China. Even if China signed and ratified the HCCH 2019 Judgments Convention early, it needs time for other countries to join. The real-life benefit of the Convention may take time to show but it will be there in a long run.

81 SA Riesenfeld and FM Abbott, ‘Participation in the Making and Operation of Treaties’ (1991) 67 Chicago–Kent Law Review 293; MJ Glennon, ‘The Senate Role in Treaty Ratification’ (1983) 77 American Journal of International Law 257.

part iii Outlook

314

15 Lessons Learned from the Genesis of the HCCH 2019 Judgments Convention NING ZHAO*

I. Introduction During the closing ceremony of the Twenty-Second Session of the Hague Conference on Private International Law (HCCH), at which the HCCH 2019 Judgments Convention1 was adopted, the Secretary General of the HCCH, Dr Christophe Bernasconi, referred to the Convention as ‘a game changer for cross-border dispute settlement and an apex stone for global efforts to improve real and effective access to justice’.2 The Convention creates ‘a uniform set of core rules on recognition and enforcement of foreign judgments’3 to ‘promote effective access to justice for all and to facilitate rule-based multilateral trade and investment, and mobility’.4 Through enhanced judicial cooperation, the Convention provides ‘greater predictability and certainty in relation to the global circulation of foreign judgments’,5 elements of paramount importance in cross-border trade, investment and commerce. The Convention will contribute to the development of a mature, rule-based global trade and commercial system, implementing UN Sustainable Development Goal 16.6 The Convention has been developed at a time when open society has become a norm.7 As multiculturalism is a feature of open society, the negotiation of a multilateral treaty on recognition * Principal Legal Officer, Permanent Bureau, the HCCH; The views and opinions expressed in this chapter are the personal views of the author and do not reflect the official policy or position of the Hague Conference on Private International Law (HCCH), nor its Secretariat (the Permanent Bureau). 1 Information on the Convention is available at HCCH, Judgments Section: www.hcch.net/en/instruments/conventions/specialised-sections/judgments. For the operation of the Convention, see F Garcimartín and G Saumier, Explanatory Report on the HCCH 2019 Judgments Convention (HCCH 2020). See also, A Bonomi and C Mariottini, ‘(Breaking) News From The Hague: A Game Changer in International Litigation? Roadmap to the 2019 Hague Judgments Convention’ (2018/19) 20 Yearbook of Private International Law 537; N Zhao, ‘Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention’ (2020) 30 Swiss Review of International and European Law 345; PA Nielsen, ‘The Hague 2019 Judgments Convention – from failure to success?’ (2020) Journal of Private International Law 205. 2 Speech delivered by the Secretary General at the Closing Ceremony of the Twenty-Second Session of the HCCH on 2 July 2019. 3 Preamble 2. 4 ibid. 5 Preamble 3. 6 United Nations General Assembly, Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc A/RES/70/1 (21 October 2015, adopted 25 September 2015) 25–26, ‘Goal 16’. 7 J Basedow, ‘The Law of Open Societies – Private Ordering and Public Regulation of International Relations’ (2012) 360 Recueil des cours 471.

316  Ning Zhao and enforcement of judgments, which is in turn premised on the acknowledgement of differences among legal systems, and divergent social, cultural and economic choices, has been explained through various theoretical lenses, for example, treating recognition of foreign judgments as a trade issue,8 or as a ‘trust issue’ optimising the right of effective access to justice for private parties in the international arena.9 In any event, political drive would be strictly necessary for the conclusion of the Convention and its future acceptance.10 Building trust and bridging differences between varying legal systems by adopting pragmatic and flexible approaches were, and will continue to be, key to the Convention’s success. Against this background, this chapter explains how the difficulties encountered during the development of the Judgments Convention (the Judgments Project) were eventually overcome, and particularly how the lessons learned in this process can be relevant for the current discussions at the HCCH on jurisdiction/parallel proceedings (ie, the Jurisdiction Project).11 After briefly appraising the history of the Judgments Project (section II), this chapter explores the changes that were, as a driving force, shaping the legal landscape and negotiation dynamics of the Judgments Project (section III). It describes how the HCCH tackled various difficulties by building trust and bridging differences among the negotiators (section IV) and explores the relevance of the lessons learned for the Jurisdiction Project (section V). Section VI concludes with an outlook on the Judgments Convention and the Jurisdiction Project.

II.  History of the HCCH 2019 Judgments Convention For many decades12 the HCCH has been actively working on enhancing the efficient and effective resolution of transnational disputes through the development of Conventions.13 The road leading to the HCCH 2019 Judgments Convention, the latest of its Conventions, presented various challenges. To understand the lessons learned during this journey, this section retraces the history of the Convention, highlighting the most salient phases of its development.

8 RA Brand, ‘Recognition of foreign judgments as a trade law issue: The economics of private international law’ in JS Bhandari and AO Sykes (eds), Economic Dimensions in International Law: Comparative and Empirical Perspectives (Cambridge University Press 1998). 9 M Weller, ‘The HCCH 2019 Judgments Convention: New Trends in Trust Management’ in C Benicke and S Huber (eds), National, International, Transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke (Gieseking 2020); M Weller, ‘“Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?’ (2022) 423 Recueil des cours. 10 J Hoekstra, ‘Political Barriers in the Ratification of International Commercial Law Conventions’ (2021) 26 Uniform Law Review 43, 46 (stating that political considerations play a key role from the start of drafting an international convention). 11 For the current stage of discussion of the Jurisdiction Project, see below, section V.A. 12 For the history and background of the Judgments Project, see RA Brand, ‘Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead’ (2020) 67 Netherlands International Law Review 3; H van Loon, ‘Towards a global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters’ (2020) 38 Nederlands Internationaal Privaatrecht 4; LE Teitz, ‘Another Hague Judgments Convention? Bucking the Past to Provide for the Future’ (2019) 29 Duke Journal of Comparative and International Law 491; A Bonomi, ‘Courage or Caution? A Critical Overview of the Hague Preliminary Draft on Judgments’ (2015/16) 17 Yearbook of Private International Law 1. 13 Since the early 1950s, when it was established as a permanent intergovernmental organisation, the HCCH has developed a total of 40 instruments, consisting of 37 conventions, 2 protocols and one soft law instrument. These instruments cover three areas of law: International Family and Child Protection, International Legal Cooperation and Transnational Litigation, as well as International Commercial, Digital and Financial Law.

Lessons Learned from the Convention  317

A.  Phase One: HCCH 1971 Enforcement Convention The earliest attempt by the HCCH to develop a comprehensive convention on recognition and enforcement of judgments led to the conclusion of the HCCH 1971 Enforcement Convention.14 As a single Convention, it governs only recognition and enforcement of foreign judgments, containing no rules on jurisdiction according to which courts of a State could establish judicial competence. The HCCH 1971 Enforcement Convention has only five Contracting Parties: Albania, the Netherlands,15 Kuwait, Cyprus and Portugal. There are two main reasons for its lack of success.16 First, the format of the HCCH 1971 Enforcement Convention is unusual and complex. To operate between two Contracting Parties, the Convention requires the Contracting Parties to also conclude a bilateral agreement between them.17 This additional requirement affects the efficiency of the Convention because, as evidenced, not a single bilateral agreement has been concluded between the five Contracting Parties. Accordingly, the Convention has never been in operation. The second reason relates to the dynamics following the adoption of the HCCH 1971 Enforcement Convention. The success of regional instruments on the recognition and enforcement of judgments, particularly the Brussels Convention18 and the Lugano Convention, had made the Convention less attractive, because Member States of the (then) European Community and the European Free Trade Area (EFTA), which were then largely overlapping with the Members of the HCCH, enjoyed straightforward recognition and enforcement of judgments under both regional instruments and had no pressing need to join the HCCH 1971 Enforcement Convention. This reality also discouraged other States from joining the Convention.19

B.  Phase Two: 2001 Interim Text Two decades later, in 1992, the Judgments Project was initiated by the United States of America for a ‘multilateral convention on the recognition and enforcement of judgments’.20 Inspired by 14 The Convention entered into force on 20 August 1979. Information of this Convention is available at: www.hcch.net/ en/instruments/conventions/full-text/?cid=79. Before that, the HCCH had concluded conventions containing articles on the recognition and enforcement of foreign decisions, but mainly in the area of family law or with a very specific scope, such as the HCCH 1958 Convention Concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Towards Children; the HCCH 1958 Convention on the Jurisdiction of the Selected Forum in the Case of International Sales of Goods; the HCCH 1965 Convention on Choice of Court. The last two Conventions never entered into force. 15 On 22 September 2022, the Netherlands extended its application of the HCCH 1971 Enforcement Convention to Curaçao. 16 See Prel Doc No 17 of May 1992, ‘Some reflections of the Permanent Bureau on a general convention on enforcement of judgments’ in Proceedings of the Seventeenth Session (1993), Tome I, Miscellaneous matters 230–39, para 3. 17 Art 21. There is another complex structure in the Convention, namely, Supplementary Protocol of 1 February 1971 to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, according to which any foreign judgment rendered based on the ‘exorbitant’ grounds of jurisdiction listed therein will be barred from recognition and enforcement. See ibid. 18 EC, 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1972] OJ L299 (Brussels Convention), which was transformed into Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12, and then was revised to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351 (Brussels Ia Regulation), together referred to as the Brussels system. 19 See Prel Doc No 17 of May 1992 (n 16) para 3; van Loon (n 12) 7. 20 See the letter from the Department of State of the United States to the Permanent Bureau dated 5 May 1992. Although the origin of this endeavour was to explore possibly negotiating a foreign judgments treaty between the United States and

318  Ning Zhao the successful operation of the Brussels Convention and its impact on the United States at the time, and given the lack of impact of the HCCH 1971 Enforcement Convention in practice, momentum gradually built for a more wide-ranging convention.21 When considering the type of the future Convention,22 the HCCH chose to develop a mixed Convention,23 which included jurisdiction rules. Because of the major differences between the European Union (EU) and the United States on jurisdiction rules,24 the Nineteenth Session of the HCCH, which was convened in 2001, did not successfully conclude a convention.25 The 2001 Interim Text was produced instead,26 which contains many provisions in square brackets and alternative versions, demonstrating that consensus could not be reached among the negotiating States.27 It then became apparent that trying to adopt a comprehensive convention with a broad scope of subject matters was overly ambitious, and that work should proceed with a focus on developing a text ‘with a sufficient prospect of reaching agreement’.28

EC – European Free Trade Area (EFTA) Members States, the HCCH convinced the United States that a global instrument could be negotiated instead. See Prel Doc No 17 of May 1992 (n 16) para 1; see also van Loon (n 12) 8; J Blom, ‘The Court Jurisdiction and Proceedings Transfer Act and the Hague Conference’s Judgments and Jurisdiction Projects’ (2018) 55 Osgoode Hall Law Journal 257, 260–61; RA Brand, ‘Intellectual Property, Electronic Commerce and the Preliminary Draft Hague Jurisdiction and Judgments Convention’ (2001) 62 University of Pittsburgh Law Review 581, 583–85. 21 P Nygh, ‘Towards a Global Judgments Convention: The Proposed New Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters’ (1997) 7 Australian International Law Journal 96, 96; Brand, ‘Intellectual Property, Electronic Commerce and the Preliminary Draft Hague Jurisdiction and Judgments Convention’ (n 20) at 582–83; Prel Doc No 17 of May 1992 (n 16) paras 2–10. 22 The type of the Convention includes: traité simple, like the 1971 Enforcement Convention dealing only with recognition and enforcement; or traité double, like the Brussels system covering both jurisdiction and recognition and enforcement; or traité mixte, as proposed by Professor Arthur von Mehren, which includes three categories of grounds of jurisdiction: (1) permitted grounds; (2) prohibited grounds; and (3) ‘grey area’ grounds. Rules on recognition and enforcement were linked to the three different categories of jurisdictional grounds, being that: judgments based on permitted grounds must be recognised and enforced in all Contracting Parties; those based on prohibited grounds will not be recognised and enforced; and national law will decide whether a judgment based on ‘grey area’ grounds will be recognised or not. See A von Mehren, ‘Theory and Practice of Adjudicatory Authority in Private International Law: A Comparative Study of the Doctrine, Policies and Practices of Common- and Civil-Law Systems’ (1996) 295 Recueil des cours 404. 23 See Prel Doc No 17 of May 1992 (n 16) paras 14–19. 24 For explanation, see generally, JJ Barceló III and KM Clermont (eds), A Global Law of Jurisdiction and Judgments: Lessons from The Hague (Kluwer Law International 2002); G-P Calliess, ‘Value-added Norms, Local Litigation, and Global Enforcement: Why the Brussels-Philosophy failed in The Hague’ (2004) 5 German Law Journal 1489; WE O’Brian Jr, ‘The Hague Convention on Jurisdiction and Judgments: The Way Forward’ (2003) 66 Modern Law Review 491; J Regan, ‘Recognition and Enforcement of Foreign Judgments – A Second Attempt in The Hague?’ (2015) 14 Richmond Journal of Global Law & Business 63, 64; RA Brand, ‘Jurisdictional Developments and the New Hague Judgments Project’ in A Commitment To Private International Law: Essays In Honour of Hans van Loon (Intersentia 2013) 91–92; Bonomi, ‘Courage or Caution?’ (n 12) 3–4. 25 Out of six major areas of difficulties that were identified (the Internet and e-commerce; activity-based jurisdiction; consumer and employment contracts; IP rights; the relationship with other instruments; and bilateralisation), four were related to jurisdiction issues. See Prel Doc No 16 of February 2002, ‘Some Reflections on the Present State of Negotiations on the Judgments Project in the context of the Future Work Programme of the Conference’ for the attention of Commission I (CGAP) of the XIXth Diplomatic Session – April 2002, in Proceedings of the Nineteenth Session (2001/02), Tome I, Miscellaneous matters, available at: assets.hcch.net/docs/fc32c43e-22ac-4cb1-8f79-67688d66b282.pdf, para 5. 26 ‘Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference 6–20 June 2001 – Interim Text’ prepared by the Permanent Bureau and the Co-Reporters, in Proceedings of the Twentieth Session (2005), Tome II, Judgments (2013) 621, available at: assets.hcch.net/docs/e172ab52-e2de-4e40-9051-11aee7c7be67.pdf. 27 Y Oestreicher, ‘“We’re on a Road to Nowhere” Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments’ (2008) 42 International Lawyer 59, 61 (arguing that the model of a mixed Convention was the main reason for the failure of the Nineteenth Session). 28 Prel Doc No 21 of January 2003, ‘Report on the Second Meeting of the Informal Working Group on the Judgments Project’, 4, is available at: assets.hcch.net/docs/76452128-df16-4456-b2f0-d49d4f0f82ed.pdf.

Lessons Learned from the Convention  319

C.  Phase Three: HCCH 2005 Choice of Court Convention The decision to scale down the work to focus on international cases involving choice of court agreements bore fruit: the Choice of Court Convention was concluded on 30 June 2005.29 This Convention, which gives effect to the choice of court agreement made by the parties, establishes three main rules: the chosen court must hear the disputes (Article 5); the non-chosen court must decline or suspend the case in favour of the chosen court (Article 6); and judgments given by the chosen court must be recognised and enforced by other Contracting Parties (Article 8).30 This simple and effective framework is subject only to narrow exceptions.

D.  Phase Four: HCCH 2019 Judgments Convention In 2011, a reflection process was launched to assess the feasibility of resuming the Judgments Project.31 Subsequently, for the efficient management of the Project and in response to certain States’ policy concerns over negotiating jurisdiction issues at the international level, the decision was made in 2013 to first draft a convention solely on the recognition and enforcement of foreign judgments by the Working Group, leaving the jurisdiction to be dealt with by an Experts’ Group once the work on the former was completed.32 After five years of preparation, including five Working Group and four Special Commission meetings, the Judgments Convention was concluded on 2 July 2019 during the Twenty-Second Session. Notably, the Convention will enter into force on 1 September 2023, following the EU’s accession33 and Ukraine’s subsequent ratification on 29 August 2022. At the time of writing, Uruguay, Israel, Costa Rica, Russia and the United States have signed the Convention.

III.  Evolving Dynamics: An Increasingly Interconnected World and Heightened Political Drive Evolving dynamics had a different impact on each negotiation stage of the Project. The increasingly interconnected world, which resulted from continued globalisation and the development of 29 The Convention entered into force on 1 October 2015. At the time of writing, 32 Members are bound by it: Mexico, the EU, all EU Member States, Singapore, Montenegro and the United Kingdom (due to Brexit, the United Kingdom acceded to the Convention in its own right on 1 January 2021, ensuring its continuity of being a Contracting Party to the Convention). The United States, Ukraine, the People’s Republic of China (China), North Macedonia and Israel are signatories. Information on the Convention is available at HCCH Choice of Court Section: www.hcch.net/en/instruments/ specialised-sections/choice-of-court, 30 For the operation of the Convention, see T Hartley and M Dogauchi, Explanatory Report on the HCCH 2005 Choice of Court Convention (HCCH 2005). 31 See, ‘Background Note’ of March 2012, for the attention of the Experts’ Group meeting of 12–14 April 2012 (Background Note of March 2012) paras 8–34; Teitz (n 12) 496–97. 32 ‘Process Paper on the Continuation of the Judgments Project’ of August 2013; in 2016, the Council on General Affairs and Policy (CGAP) mandated that matters relating to direct jurisdiction be put for consideration to the Experts’ Group soon after a Special Commission had drawn up the draft Judgments Convention, see C&R of CGAP 2016, para 13, C&R of CGAP 2017, para 7. In 2018, the CGAP mandated that the Experts’ Group resume its work once the Diplomatic Session was concluded, see C&R of CGAP 2018, para 5. In 2019, the CGAP tasked the Permanent Bureau to make preparations for the Experts’ Group meeting in February 2020, see C&R of CGAP 2019, para 5. 33 Council Decision (EU) 2022/1206 of 12 July 2022 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters [2022] OJ L187/1. With its accession, the EU became the first Contracting Party to the Convention, which will bind the EU and all its Member States (except Denmark).

320  Ning Zhao the internet, was a dominant factor propelling the development and negotiations of the HCCH 2019 Judgments Convention. It also encouraged the HCCH to continue its journey towards the fruitful conclusion of the Jurisdiction Project. Continued globalisation fosters trade and investment ties.34 With the rapid and continuous development of IT infrastructures, deeper social, cultural and economic connections are created, with a concomitant rise in the amount and complexity of cross-border dealings and related disputes. These factors have called for a global solution for the recognition and enforcement of foreign judgments.35 Recent national and regional developments in this field, including the establishment of international commercial courts, demonstrate the imminent need and associated political drive, as well as States’ readiness for future progress at the international level. In the meantime, both the membership and Work Programme of the HCCH have also evolved. The renewed stream of energy injected is in turn translated into the active engagement and participation of HCCH Members in the negotiation of the Jurisdiction Project, as will be discussed in section V.

A.  Heightened Need and Readiness for an International Framework on Recognition and Enforcement of Foreign Judgments There is a global trend towards greater recognition and enforcement of foreign judgments in national laws, particularly in loosening the reciprocity rules.36 For example, in China,37 as one of the States that has stricter rules on the recognition and enforcement of foreign judgments, its courts have loosened up the application of a strict de facto reciprocity requirement38 and started taking a pro-foreign judgments stance in recent years.39 As a result, more foreign judgments have

34 To name just a few, the Agreement between the United States, Mexico and Canada; the Belt and Road Initiative; the European Internal Market; the Comprehensive and Progressive Agreement for Trans-Pacific Partnership; and the Regional Comprehensive Economic Partnership. See Zheng Tang, ch 14, section II; Andreas Stein and Lenka Vysoka, ch 7, section II; and Adeline Chong, ch 12, in this volume. 35 The Permanent Bureau has assessed the continued need for common solutions, see Background Note of March 2012 (n 31) paras 8–10; Prel Doc No 5 of March 2012, ‘Ongoing Work on International Litigation and Possible Continuation on the Judgments Project’, for the attention of CGAP (Prel Doc No 5 of March 2012) paras 15–18. 36 Tiongmin Yeo, ‘The Changing Global Landscape for Foreign Judgments’ Yong Pung How Professorship of Law Lecture 2021, para 31; B Elbalti, ‘Reciprocity and the Recognition and Enforcement of Foreign Judgments: A lot of Bark but not much Bite’ (2017) 13 Journal of Private International Law 184. Reciprocity, as a ground for recognition and enforcement of foreign judgments, takes several forms: de facto reciprocity, meaning that the court addressed requires that courts of the State of origin had once recognised a judgment given by the requested State; a presumed reciprocity (de jure reciprocity) requires only that a judgment of the court addressed could be enforced under the law of the court of origin. 37 Zheng Tang, ch 14, section II, in this volume. 38 Art 282 Civil Procedure Law states that in the absence of any treaty relationship, foreign judgments can only be recognised and enforced based on reciprocity. When interpreting reciprocity, Chinese courts took a strict de facto reciprocity, see the Gomi Akira case in 1994, and Reply of the Supreme People’s Court on whether the People’s Courts of the PRC Should Recognise and Enforce Japanese Judgments Concerning Claims and Obligations (1995) Min Tazi No 17. For discussion on refusal based on the lack of reciprocity, Yahan Wang, ‘A turning point of reciprocity in China’s recognition and enforcement of foreign judgments: a study of the Kolmar case’ (2017) 4 Nederlands Internationaal Privaatrecht 772. 39 The Chinese judiciary concluded memorandums with other States in facilitating the recognition and enforcement of each other’s judgments. For example, in June 2017, the Supreme People’s Court (SPC) and ASEAN countries, as well as South-Asian countries reached an understanding on the use of presumptive reciprocity (see Point 7 the Nanning Declaration, approved at the 2nd China–ASEAN Justice Forum). On 31 August 2018, the SPC concluded a non-binding Memorandum of Guidance (MoG) with the Supreme Court of Singapore on the Recognition and Enforcement of Money Judgments in Commercial Matters.

Lessons Learned from the Convention  321 been recognised in China,40 such as, Singapore,41 the Republic of Korea,42 the United States43 and the United Kingdom.44 The recent Judicial Policy issued by China’s Supreme People’s Court on 31 December 202145 notably contains breakthroughs for the recognition and enforcement of foreign judgments in China, including the use of de jure reciprocity.46 Although the Judicial Policy is not legally binding, it nevertheless demonstrates the liberal attitude expected to be taken by the Chinese courts in dealing with foreign judgments.47 The development of direct jurisdiction rules in different jurisdictions increased the possibility of developing an international framework for recognition and enforcement. For example, in the United States, adjudicatory jurisdiction is a constitutional matter,48 focusing on the connection between the court and the defendant. As such, the traditional US approach wherein US courts exercised general jurisdiction if the defendant had ‘continuous commercial contacts with the forum’49 was one of the primary sources of disagreement between the United States and the EU in the earlier phases of the Judgments negotiations.50 Since 2011, the US Supreme Court, in Goodyear51 and Daimler,52 has narrowed the grounds for general jurisdiction53 by holding that general jurisdiction has been found only when the defendant’s contacts with the forum are so continuous and systematic that it is ‘essentially at home in the forum state’.54 With these changes, US grounds for general jurisdiction become similar to those in the EU, which paved the way for further negotiation between the two parties in the area of recognition and enforcement of foreign judgments. 40 In the past, only a small number of foreign judgments were recognised in China, see Wenliang Zhang and Guangjian Tu, ‘The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change its Attitude Towards The Hague’ (2020) 11 Journal of International Dispute Settlement 614, 630–34; Bin Sun, ‘The Future of Cross-Border Litigation in China: Enforcement of Foreign Commercial Judgments Based on Reciprocity’ (2018) 50 New York University Journal of International Law & Politics 1135, 1136; N Zhao, ‘The CICC: An Endeavour towards the Internationalization and Modernization of Chinese Courts’ in XE Kamer and J Sorabji (eds), International Business Courts: A European and Global Perspective (Eleven International Publishing 2019). 41 Kolmar Group AG v Jiangsu Textile Industry (Group) Import & Export Co, Nanjing Intermediary People’s Court (2016) Su 01 Xie Wai Ren No 3. 42 (2018) Lu 02 Xie Wai Shen No 6. 43 In 2017, a Chinese court recognised a US judgment for the first time after a long history of refusing recognition of US judgments on reciprocity grounds: Liu Li v Tao Li & Tong Wu for the recognition and enforcement of a civil judgment of a foreign court, Wuhan Intermediary People’s Court (2015) E Wu Han Zhong Min Shang Wai Chu Zi No 26; in 2018, a judgment from the state of Illinois was also recognised in Shanghai No 1 Intermediate People’s Court, Case No (2017) Hu 01 Xie Wai Ren No 16 (17 September 2018); similarly (2018) Zhe 02 Xie Wai Ren No 6. 44 (2018) Hu 72 Xie Wai Ren No 1. 45 ‘Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide’, issued by the SPC on 31 December 2021. For discussion, see: ‘How Chinese Courts Determine Reciprocity in Foreign Judgment Enforcement – Breakthrough for Collecting Judgments in China Series (III)’ – China Justice Observer, available at: www.chinajusticeobserver.com/a/breakthrough-for-collecting-judgments-in-china-series-3. 46 It should be noted that before the Judicial Policy, Chinese courts seldom mentioned de jure reciprocity. At present, the one and only case where de jure reciprocity was assessed is: www.chinajusticeobserver.com/a/ chinese-court-recognizes-singaporean-judgment-again-no-bilateral-treaty-but-only-memorandum. 47 Regarding the nature of the Judicial Policy within the Chinese judiciary, see: ‘China Issues Landmark Judicial Policy on Enforcement of Foreign Judgments – Breakthrough for Collecting Judgments in China Series (I)’ – China Justice Observer, available at: www.chinajusticeobserver.com/a/breakthrough-for-collecting-judgments-in-china-series-1. 48 Pennoyer v Neff, 95 US 714 (1878). 49 Helicopteros Nacionales de Colombia, SA v Hall, 466 US 408, 424 (1984). 50 Describing principal differences in jurisdictional approaches between the United States and the EU, see Brand, ‘Jurisdictional Developments and the New Hague Judgments Project’ (n 24) 91–92; Bonomi, ‘Courage or Caution?’ (n 12) 3–4. 51 Goodyear Dunlop Tires Operations, SA v Brown, 564 US 915 (2011). 52 Daimler AG v Bauman, 134 S Ct 746 (2014) (Daimler). 53 See LJ Silberman and AD Simowitz, ‘Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?’ 91 (2016) New York University Law Review 344, 344–47, 346, fn 6, 347 fn 7 (describing the more stringent requirements for general jurisdiction articulated in Goodyear and Daimler). 54 Daimler 134 S Ct 751 (quoting Goodyear, 564 US 919).

322  Ning Zhao The value of an international framework for the recognition and enforcement of foreign judgments, with the HCCH 2019 Judgments Convention being a prominent example, also becomes apparent. In a case where a Dutch court was requested to recognise an Albanian judgment, the court, instead of applying the HCCH 1971 Enforcement Convention, to which both the Netherlands and Albania are bound, applied its national law, with the reason that a bilateral agreement, as required under Article 21 of the Convention, had not been concluded between the two States concerned.55 In another judgment, while a Dutch judge acknowledged the need to refer to an international standard in verifying the jurisdiction of the US court (the court of origin), the judge nevertheless referred to the European standard by citing the Brussels Ia Regulation and relevant EU cases.56 The proliferation of international commercial courts (or tribunals) around the world can also prove the need for such an international framework.57 The success of these courts in the ‘litigation market’,58 ie, to attract international parties to submit their disputes to them,59 would be largely related to the enforceability of their judgments abroad. International parties will be more willing to litigate before these courts if their judgments could be easily circulated in other jurisdictions. This is more so for courts that would serve as a ‘neutral’ forum60 or accept ‘opt-in’ jurisdiction,61 as their judgments will need to be enforced abroad more frequently. These courts have made efforts to promote the enforceability of their judgments abroad, for example, by signing bilateral memoranda of guidance between judiciaries62 and publishing the Multilateral Memorandum on Enforcement by the Standing International Forum of Commercial Courts.63 The effectiveness of these documents may, however, remain open as they are non-binding and do not provide a guarantee for the enforcement of their judgments in the jurisdictions with which these courts have signed memoranda.64 Therefore, the enforceability of judgments of these courts is best addressed by international treaties.65 With strengthened economic ties there have also been recent efforts in the harmonisation of recognition and enforcement rules at regional levels or within a particular legal tradition, for example, the Model Law on the Recognition and Enforcement of Foreign Judgments promulgated by the Commonwealth Office66 and the Asian Principles for the Recognition and Enforcement of Foreign Judgments published by the Asian Business Law Institute.67 55 ECLI:NL:HR:2021:1170, 16 July 2021. 56 ECLI:NL:GHSHE:2021:2699, 31 August 2021. 57 Such as those in Dubai, Abu Dhabi, China, Singapore, the United Kingdom, the Netherlands, France and Kazakhstan. For the developments of such courts, see XE Kramer and J Sorabji (eds), International Business Courts: A European and Global Perspective (Eleven International Publishing 2019). 58 M Requejo Isidro, ‘International Commercial Courts in the Litigation Market’ (2019) MPILux Research Paper Series 2. 59 N Andrews, ‘The Foreign Party’s Choice between Arbitration and Court Litigation’ in S Shetreet and W MacCormack (eds), The Culture of Judicial Independence in a Globalised World (Brill Nijhoff 2016); SI Strong, ‘International Commercial Courts and the United States: An Outlier by Choice and by Constitutional Design’ in XE Kramer and J Sorabji (eds), International Business Courts: A European and Global Perspective (Eleven International Publishing 2019); G Cuniberti, ‘Signalling the Enforceability of the Forum’s Judgments Abroad’ (2020) 56 Rivista di diritto internazionale privato e processuale 33, 36–37. 60 Singapore International Commercial Court. 61 Dubai International Financial Center Court. 62 Cuniberti (n 59) 41–46. 63 The second edition of the Multilateral Memorandum on Enforcement of Commercial Judgments for Money was issued in late 2020. 64 Cuniberti (n 59) 43, 45–46; Strong (n 59) 260. 65 Strong (n 59) 260. 66 Office of Civil and Criminal Justice Reform, Model Law on the Recognition and Enforcement of Foreign Judgments (2018). It aims at assisting its member countries to modernise their approach to the recognition and enforcement of foreign judgments. Abubakri Yekini and Chukwuma Okoli, ch 13 in this volume. 67 It aims at advancing the convergence of foreign judgments recognition and enforcement rules in Asia. See A Chong (ed), Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI 2020); A Chong, ‘Moving towards

Lessons Learned from the Convention  323 All the efforts made by judiciaries, policymakers and academia have a high value. They serve an essential role in bringing mutual understanding to each other’s rules and bringing each other’s laws and practices closer, thereby preparing States for possible future harmonisation of laws. Importantly, all these endeavours demonstrate that, under the new paradigm, the issue of recognition and enforcement of foreign judgments is a matter high on the agenda of national and geographical politics, and that there is an urgent need for an international framework to regulate this issue, in response to the closely knit private relationships in cross-border civil or commercial transactions. It was also against this background that the Judgments Project was brought back to the HCCH Work Programme and resumed in 2011.

B.  Ever-Growing Membership of the HCCH and Changing Negotiation Dynamics Another evolving dynamic that influenced the development of the Judgments Project is the sharp increase in HCCH membership. The HCCH had only 37 Members in 1992 when the Judgments Project started rolling out, compared with 57 in 2001 – the year in which the Nineteenth Session was held. When the Convention was adopted in July 2019, there were 83 Members and more than 150 countries connected to the work of the HCCH, more than double the membership compared with 20 years earlier.68 In its pursuit of universality,69 the HCCH has witnessed a shift in its global nature from a Western European focus to every continent in the world. In this process, the Permanent Bureau with its two regional offices, one in Argentina for Latin America and the Caribbean, and another in Hong Kong SAR, China, for the Asia Pacific, is more able to include States in different regions in its work, including providing postConvention assistance and preparing States for participation in multilateral negotiations, such as Special Commission meetings and Diplomatic Sessions. These efforts led to a significant increase in the number of negotiating Members in the Judgments Convention70 and impacted the negotiation dynamics. There have been several important changes in the dynamics of negotiations. First, the globalised character of the HCCH was reflected in the negotiations leading up to the HCCH 2019 Judgments Convention. The two key players in the earlier phases of the Project, the EU and the United States, notwithstanding the difficulties encountered in the past, stayed interested and involved throughout the entire process as, given the continued increase in global commerce, they saw the need to circulate their judgments also to other States, especially those that adopt restrictive approaches towards foreign judgments.71 The political change in the EU, in which the competence in the areas of jurisdiction and recognition and enforcement of foreign judgments was shifted from the Member State to the EU, enables the latter to negotiate the Convention and speak for all its Member States. On the other side of the globe, the Latin American States also became more involved in the Project, and interestingly, they formed another important voice.

harmonisation in the recognition and enforcement of foreign judgment rules in Asia’ (2020) 16 Journal of Private International Law 31. 68 At the time of writing, the HCCH has 91 Members, and in total, 156 States are connected to its work. For information about the HCCH, see: www.hcch.net. 69 HCCH Permanent Bureau, HCCH Strategic Plan 2019–2022 (The Hague 2019). 70 More than 400 delegates, representing 81 States and Observers, attended the Twenty-Second Session. See news release, HCCH, ‘Gamechanger for cross-border litigation in civil and commercial matters to be finalised in the Hague’, available at: www.hcch.net/en/news-archive/details/?varevent=683. 71 Bonomi, ‘Courage or Caution?’ (n 12) 4–5.

324  Ning Zhao Yet other States, such as China,72 Russia, Singapore, Israel and Japan, also attached great importance to the Project and actively participated in the negotiations. Another change is found in the composition of delegations. Nowadays, given the complex subject matters involved, HCCH Members’ delegations are composed not only of private international law experts, but also of subject matter specialists, such as those in intellectual property (IP) and competition law areas. It is also common to see judges and practitioners as part of the delegations, in addition to government officials and diplomats. Having such diverse stakeholders participate and be represented in the negotiations has made it possible to gear policy discussions to what is technically possible and also align technical discussions with what is politically acceptable. Involving diverse stakeholders also helps foster a feeling of ownership for the Project, enhancing the success of the negotiations and the future acceptance of the Convention. This change can be interpreted as another manifestation of HCCH Members’ strong political will to negotiate the Judgments Convention. An increasingly active engagement of diverse international and regional stakeholders was also observed in the negotiation of the HCCH 2019 Judgments Convention. More than 20 intergovernmental and non-governmental organisations73 specialising in international trade, cross-border commercial transactions and dispute resolution participated in the negotiation of the Convention and provided support to the Project in various ways. Gaining worldwide attention in different sectors enhances the chance of successful negotiation and is meaningful for the future acceptance of the Convention. One highlight of the procedural changes was the codification of the consensus-based decisionmaking system in the HCCH Statute in 2005.74 Generally speaking, negotiating a Convention under a consensus-based system can pose many challenges. In particular, it would be more difficult to reach consensus when many States are involved and they naturally advocate their own diverse national policies. However, at the same time, a multilateral negotiation requires reflecting more global interest. Thus, one may wonder what has contributed to the successful adoption of the HCCH 2019 Judgments Convention, despite these novel, evolving and complex changes.

IV.  Evaluating the Success through Gauging the Lessons Learned The history of the Judgments Project suggests that the lack of understanding of the legal, cultural, social and economic concerns behind each State’s policies has caused difficulties in past negotiations. For example, the different core values and philosophies on jurisdiction harboured by States, most notably the EU and the United States, and their diverging policy intentions in the Judgments Project, accounted for the suspension of the negotiations in 2001. Similarly, for the recognition 72 J Sun and Q Wu, ‘The Hague Judgments Convention and How We Negotiated It’ (2020) 19 Chinese Journal of International Law 481. 73 Such as, the International Commission on Civil Status, the International Institute for the Unification of Private International Law (UNIDROIT); the European Patent Office (EPO); the World Intellectual Property Organization (WIPO); the Organisation of Harmonisation of Business Law in Africa (OHADA); the United Nations Commission on International Trade Law (UNCITRAL); the Asian Business Law Institute (ABLI); the International Association for the Protection of Intellectual Property (AIPPI); the International Bar Association (IBA); the International Chamber of Commerce (ICC); the European Group of Private International Law (GEDIP); the International Federation of the Phonographic Industry (IFPI); the International Law Association (ILA); the International Swaps and Derivatives Association (ISDA); the International Trademark Association (INTA); P.R.I.M.E. Finance Foundation; the International Union of Judicial Officers (UIHJ); the International Association of Judges (IAJ). 74 The HCCH revised its Statute at its Twentieth Session in 2005. Now Art 8(2) reads ‘the Sessions, Council and Special Commissions shall, to the furthest extent possible, operate on the basis of consensus’.

Lessons Learned from the Convention  325 and enforcement of foreign judgments, it has generally been considered that in recognising and enforcing a foreign judgment, the requested State implicitly recognises the law of the foreign court, and as such, recognition and enforcement affect State sovereignty.75 During the negotiations, certain States were concerned that Contracting Parties might be bound to recognise and enforce judgments from other States whose legal systems are considered likely to produce ‘biased, unprincipled or defective’ judgments.76 In practice, the systemic lack of due process has occasionally been raised as an objection to the recognition and enforcement of foreign judgments,77 and courts have assessed the issue with caution.78 Thus, to overcome the difficulties arising from the unknowns and unfamiliarity of each other’s laws, practices and policies, two keys to success are advanced here: building mutual trust among the negotiators,79 and bridging differences among diverging laws and practices.

A.  Building Mutual Trust among States In multilateral treaty negotiations, integrity, dedication and flexibility shown by the negotiators are of paramount importance, and these elements can be strengthened by enhanced mutual trust. This is especially the case for the HCCH 2019 Judgments Convention. At each historical phase of the Judgments Project, to prepare for the deliberations, a tremendous amount of work, during and between the Sessions, was organised to allow for discussions on controversial topics. The discussions took place in person or via email; some took place on a smaller scale and were open to Members and their negotiators only; others were in a larger setting, also comprising other stakeholders. A considerable number of well-attended meetings were held throughout the years, including, several informal meetings that were hosted by Members to discuss specific topics.80 All these made collaborative work and broad consultation possible, which deepened the negotiators’ understanding of the problems that stood in the way of negotiation and provided an opportunity to exchange ideas or explore various proposals. This improved understanding and trust between the parties. In addition, HCCH Members’ confidence in pursuing the Judgments Project has also been boosted by the development of the rules on jurisdiction and recognition and enforcement in 75 Prel Doc No 7 of April 1997, ‘International Jurisdiction and Foreign Judgments in Civil and Commercial Matters’, for the attention of the Special Commission of June 1997 on the question of jurisdiction and recognition and enforcement of foreign judgments in civil and commercial matters, in Proceedings of the Twentieth Session (2005), Tome II, Judgments, available at: assets.hcch.net/docs/76852ce3-a967-42e4-94f5-24be4289d1e5.pdf, paras 13–14. 76 DP Stewart, ‘The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’ (2019) 113 American Journal of International Law 772, 780; RA Brand, ‘The Circulation of Judgments Under the Draft Hague Judgments Convention’ (2019) University of Pittsburgh School of Law Legal Studies Research Paper Series, Working Paper No 2019-02, 33–35; A Bonomi, ‘New Challenges in the Context of Recognition and Enforcement of Judgments’ in F Ferrari and DP Fernandez Arroyo (eds), Private International Law: Contemporary Challenges and Continuing Relevance (Edward Elgar, 2019). 77 eg, a Liberian judgment was refused recognition in Bridgeway Corp v Citibank, 45 F Supp 2d 276 (SDNY 1999), 201 F 3d 134 (2nd Cir 2000) where there was effectively no functioning court system. 78 For instance, in Hebei Huaneng Industrial Development Co Ltd v Shi [2021] NZHC 2687 (the decision arose on an application for a summary judgment for recognition) and Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 (the decision arose on an application to stay or dismiss the enforcement proceeding at the jurisdictional stage), New Zealand courts rejected the argument that Chinese courts do not qualify as ‘courts’ and their judgments are not entitled to recognition due to their lack of impartiality and independence. In addition, recently, in Shanghai Yongrun Inv Mgt Co, Ltd v Maodong Xu, New York Appellate Division reversed the trial court decision of refusing the enforcement of a Chinese court judgment on the ground of systemic lack of due process, See Zheng Tang, ch 14, section IV, in this volume. 79 Negotiators refer to the Members of the HCCH; States (Non-HCCH Members) and international organisations attend HCCH meetings as Observers, see Art II.J.(1)(a) HCCH Rules of Procedure. 80 Such as those organised by Canada, Israel and Hong Kong SAR.

326  Ning Zhao recent years. Being more aware of global trends, Members are becoming more broad-minded and more accepting of different options and are willing to engage in exploring alternatives to build bridges where divergence and disagreement persist. The Permanent Bureau also played an active role in building mutual trust among HCCH Members. To facilitate the negotiations on the Judgments Convention, the Permanent Bureau conducted extensive work, including preparing numerous documents such as comparative research, position papers and reports on ongoing processes.81 The Permanent Bureau endeavoured to keep Members abreast of national or regional law developments in the fields of jurisdiction and recognition and enforcement.82 All these enabled Members to be more familiar with the law and practice among other States. By raising the awareness and visibility of the Judgments Project on various occasions with different stakeholders, the Permanent Bureau effectively promoted the understanding and acceptance of the Project.83 These are essential elements that paved the way for the success of negotiation and the future acceptance of the Convention.

B.  Bridging Differences Differences in national laws must be bridged in order to reach a convention. In this respect, with enhanced trust and understanding among each other, the negotiators drafted the Judgments Convention in a pragmatic and flexible way. While bridging the differences, the negotiators also endeavoured to strike a balance between a broad convention bearing the risk of less success and a modest convention with a higher chance of success.84 Below are a few examples.

i.  Developing a Single Convention, with Indirect Grounds of Jurisdiction The first pragmatic approach was to draft a single convention dealing with recognition and enforcement, without regulating direct jurisdiction rules. Although this may mean that the Project would be less ambitious than originally foreseen, it enhanced the chances of success, as experience suggested that it would still be challenging to agree on a treaty harmonising direct jurisdiction rules. The negotiators agreed to apply indirect grounds of jurisdiction (jurisdictional filters) to identify which judgments are eligible for circulation, and as such, the HCCH 2019 Judgments Convention does not affect national direct jurisdiction rules. To bridge differences85 between legal traditions, the negotiators generated a list of indirect grounds of jurisdiction that are universally acceptable,86 which lays a technical basis for the future acceptance of the Convention. These indirect grounds of jurisdiction reflect a sufficient link between the dispute or the person and the State of origin. 81 eg, ‘The possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention’, ‘Treatment of penalty orders that are imposed on the non-compliance with non-monetary judgments under the 2018 draft Convention’, ‘Note on “common courts” in Article 22 of the February 2017 draft Convention’. For preparatory work, see HCCH #41 – Publications, available at: www.hcch.net/en/instruments/conventions/publications1/?dtid= 61&cid=137. 82 eg, Background Note of March 2012 (n 31); Prel Doc No 5 of March 2012 (n 35). 83 Hoekstra (n 10) 58–60 (arguing the importance of generating political visibility for the ratification of a Convention). 84 D Goddard, ‘The Judgments Convention: The Current State of Play’ (2019) 29 Duke Journal of Comparative & International Law 473, 480; Nielsen (n 1) 246. 85 Especially, Art 5(1)(g) HCCH 2019 Judgments Convention, for ‘purposeful and substantial connection’, see Pietro Franzina, ch 3, section IV, in this volume. 86 Arts 5 and 6.

Lessons Learned from the Convention  327

ii.  Designing a Pragmatic ‘Bilateralisation’ Mechanism Concerns of certain States regarding the systemic lack of due process in other States were also debated during the HCCH 2019 Judgments Convention negotiations:87 some HCCH Members insisted on the introduction of a ‘bilateralisation’ mechanism; others opposed it, fearing that this would affect the effectiveness and efficiency of the Convention, as had been the case with the HCCH 1971 Enforcement Convention. To bridge the different views, the negotiators made every effort to draft a bilateralisation mechanism in a pragmatic way so as to hinder the effectiveness of the Convention as little as possible. The limited ‘opt-out’ declaration mechanism is the outcome. The Convention will automatically become effective between any two Contracting Parties once entered into force,88 unless, within a certain designated period of time, a new joining State or the existing Contracting Parties make a declaration that it/they do not want to establish a treaty relation with another Contracting Party.89 Beyond the designated period of time, the Convention provides no opportunity to suspend the treaty relation with another Contracting Party.90 The Convention allows Contracting Parties to withdraw the declaration at any time.91 Although any system for bilateralisation could result in reduced efficiency of a convention,92 the HCCH 2019 Judgments Convention has found its optimal solution.93 Hopefully, by requiring Contracting Parties to make a declaration if they do not wish to have treaty relations with specific other Contracting Parties – something which is always more challenging to do for diplomatic reasons – very few declarations will be made in future practice, and the Convention will be able to operate to its fullest extent.

iii.  Introducing a Modest Substantive Scope Due to the divergence in social, economic and cultural aspects, certain subject matters raised policy concerns during the negotiations.94 For example, because no consensus on the treatment of IP judgments could be reached during the negotiations, a strict and broad exclusion was then adopted to exclude all IP judgments.95 This exclusion, which some consider a ‘missed opportunity’,96 is not ideal given the increasing economic importance of IP in global trade and

87 João Ribeiro-Bidaoui and Cristina M Mariottini, ch 5 in this volume. 88 Art 29(1). CM Mariottini, ‘Establishment of treaty relations under the 2019 Hague Judgments Convention’ (2019/20) 21 Yearbook of Private International Law 365. 89 Art 29(2) and (3). 90 For discussions in this respect, see Weller, ‘The HCCH 2019 Judgments Convention’ (n 9) (considering that Art 7(1)(b) ‘fraud’, and (c) ‘manifest incompatibility with public policy of the requested State’ including incompatibility ‘with fundamental principles of procedural fairness of that State and situations involving infringements of security or sovereignty’ are capable of dealing with such cases). 91 Art 29(4). 92 Teitz, (n 12) 506. 93 Mariottini ‘Establishment of treaty relations under the 2019 Hague Judgments Convention’ (n 88) 380; Stewart (n 76) 780–81; Nielsen (n 1) 246; C Kessedjian, ‘Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?’ (2020) 1 Nederlands Internationaal Privaatrecht 19, 23–24. 94 See Xandra Kramer, ch 1, section III and section IV, in this volume. 95 L Lundstedt, ‘The Newly Adopted Hague Judgments Convention: A Missed Opportunity for Intellectual Property’ (2019) 50 International Review of Intellectual Property and Competition Law 933; Zhao, ‘Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments’ (n 1) 362–63. 96 Lundstedt, ibid.

328  Ning Zhao investment. Such a choice was, however, necessary to ensure the adoption of the Convention. A similarly pragmatic approach was taken with regard to the subjects of defamation,97 privacy98 and anti-trust,99 all of which are excluded from the Convention, either totally or partially.

iv.  Introducing Flexibilities by Allowing Declarations To address and bridge Members’ different policy considerations, the negotiators introduced flexibilities in the Convention by way of declarations. For example, the Convention allows a Contracting Party to make a declaration not to apply the Convention to: cases that can be considered purely national (Article 17); when there is a subject matter for which they have a strong interest (Article 18); or when a State, a governmental agency, or natural persons acting on behalf of them are party to the dispute (Article 19).100

V.  Are these Lessons Relevant for the Jurisdiction Project? Lessons learned from the past can serve as inspiration and guidance for the development of the Jurisdiction Project. Thus, this section, based on the current discussion at the Working Group, sheds some light on the future direction of the Jurisdiction Project, building on some lessons learned from the development of the Judgments Convention which may be relevant for the Project.

A.  Current Stage of Discussion Work on jurisdiction was resumed following the adoption of the HCCH 2019 Judgments Convention. Between February 2020 and February 2021, three additional Experts’ Group meetings were held.101 With the recommendation of the Experts’ Group, a Working Group was established in 2021 and has subsequently met four times, the last meeting being held in February 2023.

i.  Experts’ Group Discussion At the outset, the Experts’ Group, which was tasked with discussing the desirability, necessity and feasibility of a future instrument on jurisdiction, including parallel proceedings, generally agreed on the objectives of this future instrument, ie, to enhance legal certainty, predictability and 97 CM Mariottini, ‘The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments’ (2017/18) 19 Yearbook of Private International Law 475. 98 C North, ‘The Exclusion of Privacy Matters from the Judgments Convention’ (220) 67 Netherlands International Law Review 33. 99 Zhao, ‘Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments’ (n 1) 363–65. 100 P Beaumont, ‘Judgments Convention: Application to Governments’ (2020) 67 Netherlands International Law Review 121. 101 N de Araujo and M de Nardi, ‘International Jurisdiction in Civil or Commercial Matters: HCCH’s New Challenge’ in M Pfeiffer et al (eds), Liber Amicorum Monika Pauknerová (Wolters Kluwer 2021); also Zhao, ‘Completing a longawaited puzzle in the landscape of cross-border recognition and enforcement of judgments’ (n 1) (briefly touched upon the discussion at the third Experts’ Group meeting of February 2020 and shared some preliminary remarks).

Lessons Learned from the Convention  329 access to justice, as well as reduce the risks and costs associated with the multiplicity of proceedings, and prevent inconsistent judgments in international civil or commercial litigation.102 The Experts’ Group members also shared the views that the future instrument should complement the HCCH 2005 and HCCH 2019 Conventions and that any overlap with the two Conventions should be avoided. The resumed Experts’ Group discussion focused mainly on the nature and scope of the future instrument, namely, whether it should be a binding or non-binding instrument, and whether it should only deal with parallel proceedings or also include jurisdiction.103 From the discussions on these questions, which are closely intertwined, it became evident that the jurisdictional concerns flagged two decades ago during the initial stages of the Judgments Project still remain relevant. On the one hand, it was considered that harmonising direct jurisdiction rules was unrealistic and that it encroached upon State sovereignty; on the other hand, it was believed that there was a need to unify jurisdiction rules at the international level, and that the work carried out in the last few decades formed a good basis for future work. As a result, among the several options,104 the general agreement within the Experts’ Group was to first regulate parallel proceedings by way of a binding instrument. In addition, the Experts’ Group exchanged views on how to deal with parallel proceedings. The diverging practices in civil law and common law traditions on parallel proceedings, more specifically, the first-in-time rule or the forum non conveniens doctrine were discussed. Some members supported the first-in-time rule, as it provides legal certainty and predictability. Others preferred adopting elements pertaining to the doctrine of forum non conveniens, where the firstin-time rule is often one of the factors to be evaluated when carrying out the analysis. In line with these discussions, different options were tabled during the Experts’ Group discussions: adopting the first-in-time approach, with exceptions; a better forum approach; a better forum approach with the use of certain jurisdictional rules; a mix of the first two approaches; a bottom-up approach, etc.105 Articles 21 and 22 of the HCCH 2001 Interim Text, which contained rules of parallel proceedings, were also raised for consideration. To advance such crucial work and to ‘further inform policy considerations and decisions in relation to the scope and type of any new instrument’,106 the Council on General Affairs and Policy (CGAP) mandated the establishment of a Working Group in 2021 and determined that, among others, the Working Group’s work would proceed in an inclusive and holistic manner, with an initial focus on developing binding rules for concurrent proceedings (parallel proceedings and related actions or claims), and acknowledging the primary role of both jurisdictional rules and the doctrine of forum non conveniens, notwithstanding other possible factors, in developing such rules.107

102 Prel Doc No 3 of February 2021, ‘Report on Jurisdiction Project’, for the attention of CGAP 2021, Annex I ‘Aide-mémoire of the fifth meeting (online) of the Experts’ Group on the Jurisdiction Project’, para 7. 103 For details, see Prel Doc No 3 of February 2021, ibid, Annex I; de Araujo and de Nardi (n 101) 3–7. 104 Developing a binding instrument on direct jurisdiction, including on parallel proceedings; a binding instrument on parallel proceedings, and a binding additional protocol on direct jurisdiction; or a binding instrument on parallel proceedings, and a non-binding instrument on direct jurisdiction; or non-binding instruments for both. See Prel Doc No 3 of February 2021 (n 102) paras 9–13. 105 Prel Doc No 3 of February 2021 (n 102) section IV. For the description of one approach, see P Herrup and R A Brand, ‘A Hague Parallel Proceedings Convention: Architecture and Features’ (2022) Legal Studies Research Paper Series Working Paper No 2022-27. 106 C&D of CGAP 2021, No 9(a). 107 ibid, No 9(b).

330  Ning Zhao It would also ‘explore how flexible mechanisms for judicial coordination and cooperation can support the operation of any future instrument on concurrent proceedings and jurisdiction in transnational civil or commercial litigation’.108

ii.  Working Group Discussion At the time of writing, the Working Group has met four times: in October 2021, February and February 2023, respectively. Over 60 participants from 28 HCCH Members and two Observer Organisations, representing different legal traditions and geographic diversity, have attended these meetings. The Working Group, which is tasked with drafting the core provisions, has decided to focus first on developing rules for parallel proceedings.109 As the discussion stands now, the Working Group, in considering the role of jurisdictional reference in parallel proceedings, has generally agreed to refer to ‘connections’ as the guiding principles for prioritising parallel proceedings.110 It is further considered that the ‘bases for recognition’ in Articles 5 and 6 of the HCCH 2019 Judgments Convention ought to be employed as a starting point for developing ‘connections’ rules, and that any departure from these bases should only be done with good reasons. Doing so would ensure consistency between the future Convention and the HCCH 2019 Judgments Convention and contribute to a more expedient and effective discussion, since these bases had already been thoroughly deliberated during the negotiations of the Convention. The Working Group has introduced different categories of ‘connections’. It has decided that, for actions concerning right in rem in immovable properties, the place where the immovable property is located will constitute an ‘exclusive’ connection.111 Accordingly, the court that has such ‘exclusive’ connection shall proceed with the case, while the other courts shall suspend or dismiss it.112 The Working Group has generally supported the inclusion of parties’ non-exclusive choice of court agreements113 and submission114 in the category of ‘priority’ connection. The role of the ‘connections’ in prioritising parallel proceedings is demonstrated in the flow chart developed at the second Working Group meeting.115 As shown, all courts involved in parallel proceedings would need to carry out the analysis to identify which court has priority. They would begin with checking whether there is a court having an ‘exclusive’ connection, in the absence of which, parallel proceedings will be dealt with in three scenarios, provided with respective solutions. Scenario 1: only one of the court proceedings has at least one of the connections, and accordingly, the court that has the connection would have the priority. Scenario 2: none of the court proceedings has the connection, then courts may deal with parallel proceedings according to their domestic law. Scenario 3: more than one court has the connections. While exceptions or safeguard rules for scenarios 1116 and 2117 will be further discussed, scenario 3 108 ibid, No 9(c). 109 Rules on related claims/actions will be considered at a later stage. 110 Prel Doc No 7 of February 2022, ‘Report of the Working Group on Jurisdiction’, for the attention of CGAP 2022 (Prel Doc No 7 of February 2022), Annex I ‘Report of the Working Group on matters related to jurisdiction in transnational civil or commercial litigation’ (Annex I Report) para 13. 111 This is in line with Article 6 HCCH 2019 Judgments Convention. 112 Annex I Report (n 110) paras 14–17. 113 The HCCH 2005 Choice of Court Convention covers exclusive choice of court agreements. 114 Annex I Report (n 110) para 18. 115 ibid, Annex II (Flow chart). 116 A safeguard may be necessary for cases where the proceedings before the court having a connection have not started within a reasonable time frame since the moment when the court proceedings which do not have a connection had commented the proceedings. See, Annex I Report (n 110) para 25. 117 Whether there is a need to provide negative priority connections. A negative priority rule means that a court of a Contracting State which only has a connection listed as a negative priority in the future Convention should give way to courts of other Contracting States where the parallel proceedings are pending, see Annex I Report (n 110) para 24.

Lessons Learned from the Convention  331 requires specific attention, as it demonstrates the complex situations in the search for solutions for parallel proceedings. Regarding scenario 3, the negotiations have hitherto focused on how to conduct a ‘more appropriate forum’ test. As shown in the flow chart, the ‘more appropriate forum’ test needs to be conducted only in the absence of party autonomy (parties’ choice of court agreements or submission),118 and provided that the proceedings in the court other than the court first seised have started within a reasonable time frame.119 The test, based on forum non conveniens criteria, is designed to be conducted by all the courts involved. If the courts reach the same result as to which constitutes the more appropriate court, said court will proceed with hearing the case. On the contrary, if they reach diverging outcomes, the court which first instituted the case would have priority and proceed with it. Particularly at the stage of conducting the ‘more appropriate forum’ test, coordination and/or cooperation among courts for a more efficient referral or transfer of cases, or for the swift exchange of information, would be needed. So far, the Working Group, as mandated by the CGAP, has briefly explored ways of establishing a cooperation and coordination mechanism under the future Convention. While the need for such a mechanism is generally recognised by the Working Group, the members still need to further consider the nature and practical operation of such a mechanism, and the role judges will play within it. The discussion at the Working Group is still ongoing, meaning that all issues remain open for discussion. The discussion at the Working Group is still ongoing, meaning that all issues remain open for discussion (see C&D No 9 of CGAP 2023; see Working Group on Jurisdiction: Report, Prel. Doc. No 2 of February 2023) https://assets.hcch.net/docs/5f9999b9-09a3-44a7863d-1dddd4f9c6b8.pdf.

B.  Applying the Lessons Learned The need for an instrument dealing with parallel proceedings has been discussed in the past.120 Nowadays, changing external dynamics demonstrate a more pressing need for an international framework to deal with parallel proceedings,121 because increased interconnectedness may enable more venues or fora for the parties to choose from to bring their disputes,122 and the emergence of international commercial courts globally may also increase the possibilities of parallel proceedings. A promising prospect for a Convention on parallel proceedings will, to a certain extent, depend on the application of the lessons learned from the negotiations of the HCCH 2019 Judgments Convention, namely building mutual trust and bridging differences.

i.  Building Mutual Trust The Jurisdiction Project will immensely benefit from the work carried out in the past. The interest, commitment and investment of HCCH Members in this Project have already been witnessed during the Experts’ Group and Working Group discussions, as shown in their high level of participation in the meetings and the diversity demonstrated in both Groups. Importantly, as the 118 If there is party autonomy, the court chosen shall proceed with the case, and other courts suspend or dismiss the case. 119 If the proceedings in the court other than the court first seised have not started within a reasonable time frame, the court first seised having a connection shall proceed with the case. Other courts suspend or dismiss the case. 120 ‘Note 2: “Issues Paper on Matters of Jurisdiction (including parallel proceedings)”’, January 2013, prepared by the Permanent Bureau for the attention of the Experts’ Group meeting of February 2013, paras 28–41. 121 P Herrup and RA Brand, ‘A Hague Convention on Parallel Proceedings’ (2021) Legal Studies Research Paper Series, Faculty of Law, University of Pittsburgh Working Paper No 2021-23, 3–4. 122 ibid.

332  Ning Zhao negotiators of both Projects are, to a large extent, the same, the openness, willingness and dedication towards global cooperation that the negotiators demonstrated during the Judgments Project will be carried over to the Jurisdiction Project, therefore contributing to the chances of success. Due to the pandemic, communications among the Working Group participants took place virtually in the first two Working Group meetings. However, the beneficial personal encounters and in-person communications, essential elements in ensuring successful multilateral deliberations and negotiations, have been resumed for the third Working Group meeting, when the circumstances have finally allowed them, while keeping the possibility of remote participation. This helps to further advance the progress of the Jurisdiction Project. Undoubtedly, fostering effective communication and dialogue between Members, in both formal and informal settings, is key to building trust and further understanding of each other’s legal, social and economic policies. In this respect, the Permanent Bureau endeavours to effectively organise meetings to create and maintain fluent dialogue among the participants, as well as engage diverse stakeholders. This includes, for instance, encouraging Members to designate experts for the whole duration of the Working Group (and not for each Working Group meeting) to achieve a higher level of continuity in Working Group discussions. These measures are of paramount importance, particularly during a pandemic. Preparation and facilitation of the discussions, such as drawing up questionnaires,123 conducting comparative research124 and monitoring the development of law in this area, are also indispensable components of building trust and bridging differences.

ii.  Bridging Differences Undoubtedly, pragmatic approaches, flexibility and creativity will also be needed for the future Convention on parallel proceedings. a. Scope Given the intended complementarity between the future Convention and the HCCH 2005 Choice of Court Convention and HCCH 2019 Judgments Convention, the substantive scope of the future Convention, which deals with civil or commercial matters, would use those of the latter two Conventions as a starting point. In this respect, it would be more relevant to assess the excluded subject matters of the HCCH 2019 Judgments Convention, as a more recent Convention, to see whether these matters should be adjusted. One of the broad reasons that justifies the exclusions under the HCCH 2019 Judgments Convention – to avoid overlap with other international instruments on the recognition and enforcement of foreign judgments – would not be needed for the future Convention on parallel proceedings. Thus, a careful study of the scope of the international instruments that would overlap with the future Convention would be desirable. Attention may also need to be given to the controversial issues raised in the past, such as IP125 and anti-trust. 123 By way of example, in 2020, the Permanent Bureau circulated a Questionnaire on Parallel Proceedings and Related Actions in Court-to-Court Cases to collect information on how parallel proceedings, including issues pertaining to related actions or claims, are addressed under the laws of each HCCH Member. The Summary of Responses is available in Prel Doc No 3 of February 2021 (n 102) Annex II. 124 Such as, ‘Assuming or transferring jurisdiction to non-Contracting States’, prepared by the Permanent Bureau. 125 eg, for IP, since the HCCH 2019 Judgments Convention does not deal with IP judgments, the CGAP invited the Permanent Bureau to continue the close cooperation with the International Bureau of WIPO with a view to identifying actual and practical issues of private international law faced by practitioners in cross-border intellectual property dealings (See C&D No 14 of CGAP 2020). The Permanent Bureau and the International Bureau of WIPO circulated a questionnaire in May 2021, and thereafter submitted the findings of the responses to the CGAP at its March 2022 meeting to determine, if any, future work on IP and PIL (see Prel Doc No 5 of December 2021 for the attention of CGAP 2022).

Lessons Learned from the Convention  333 The  negotiators need to consider whether to include these matters in the future Convention, noting that tremendous and in-depth work has already been carried out on these subjects126 and that the scope of the future Convention focuses on parallel proceedings. Hence, a balance between a broad scope of a Convention with less possibility for wide acceptance and a modest scope with an increased chance of success may need to be made. The geographic reach of the future Convention will also need to be considered. The future Convention intends to cover cases between the Contracting Parties; there would, however, be situations where proceedings in a non-Contracting Party would get involved, for example, as a result of a more appropriate forum analysis under the future Convention. Under such circumstances, excluding the proceedings in non-Contracting Parties could deprive the parties of access to justice. But on the other hand, limiting the application of the future Convention only to proceedings between the Contracting Parties could incentivise States to join the future Convention. b.  Reference to ‘Connections’ Based on the experience of the HCCH 2019 Judgments Convention, the reference to ‘connections’ could be a pragmatic solution building towards the success of the future Convention on parallel proceedings. The effects of the ‘connections’ would have similar functions as indirect jurisdiction rules under the HCCH 2019 Judgments Convention, ie, ‘connections’ could be assessed by all courts involved only for the purpose of prioritising parallel proceedings under the future Convention. As such, the future Convention would not affect existing national jurisdiction rules, and reference to ‘connections’ avoids the divergency on direct jurisdiction rules. If reference to ‘connections’ would continue to be used as a way forward, the Working Group needs to consider, in addition to the contents of exclusive and priority connections, other issues, such as the protection for weaker parties (consumers and employees)127 and the need to introduce negative priority rules. c.  The More Appropriate Forum (First-in-Time versus forum non conveniens) The approach of identifying a more appropriate forum will be one of the foundations for future Working Group discussions, or perhaps even be an essential element determinative for the success of the Jurisdiction Project. First-in-time and forum non conveniens are based on different philosophical backgrounds and have their respective advantages and disadvantages. Their fundamental differences also mean that it would be difficult for the Working Group to adopt one approach over the other. Although the flow chart contains both the forum non conveniens doctrine and the first-in-time rule in scenario 3 cases,128 further discussions on how to better bridge the two approaches will be carried out by the Working Group: should the first-in-time be one of the factors of the forum non conveniens and be assessed together with other factors; or should the first-in-time be used when a more appropriate forum cannot be identified or agreed 126 See Prel Doc No 16 of February 2002, ‘Some Reflections on the Present State of Negotiations on the Judgments Project in the context of the Future Work Programme of the Conference’, for the attention of Commission I (General Affairs and Policy of the Conference) of the Nineteenth Diplomatic Session – April 2002, in Proceedings of the Nineteenth Session (2001/2002), Tome I, Miscellaneous matters, para 5; Note 2 of February 2013 (n 120) para 11; ‘Note 1: “Annotated Checklist of Issues to be Discussed by the Working Group on Recognition and Enforcement of Judgments”’, January 2013 for the attention of the Working Group meeting of February 2013, paras 47–62; Prel Doc No 2 of December 2018, ‘The possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention’ for the attention of the Twenty-Second Session. 127 de Araujo and de Nardi (n 101) 4. 128 See section II.A, above.

334  Ning Zhao on by the courts involved? Also, how to address problematic tactical litigation strategies; whether the forum non conveniens analysis should be mandatory or not. Here, pragmatism and creativity are needed. As to the factors to be applied in determining a more appropriate forum, indeed, those used in the doctrine of forum non conveniens could generally be a source of inspiration. However, judges from legal systems that are unfamiliar with the forum non conveniens doctrine would have difficulty assessing these factors. In any event, the Working Group experts need to consider the contents of the factors, for instance, whether and how to include the prognosis of recognition and enforcement of judgments; whether a hierarchy should be introduced for the application of these factors; whether the list of factors should be exhaustive, to provide legal certainty, or nonexhaustive, to give discretion to the court. In addition, when designing rules in this regard, the Working Group may need to consider situations where, even if there is a more appropriate forum, parallel proceedings might be allowed to continue (subject to specific criteria) in the interests of justice and efficiency. d.  Cooperation or Coordination Mechanism The idea of introducing judicial communications had already been raised early on in the Judgments Project.129 At its current discussions, the Working Group needs to further consider the details of specific cooperation or coordination mechanism between judiciaries. This would include questions such as the nature of the mechanism; how the communication should be conducted (directly between courts, through central authorities, or a combination of both); how to overcome practical barriers, such as languages, cost or resources; and how to address constitutional concerns or the concerns about possible interference with judicial independence. In any event, the Working Group needs to be clear about what this mechanism intends to achieve: a more efficient referral, transfer, or suspension of cases among courts; merely allowing the exchange of information about the existing proceedings, etc. In this regard, the existing direct judicial communication models could be used as inspirations.130

VI. Conclusion The core lessons learned from the long and expansive history of the Judgments Project are the need to build trust among negotiators and to bridge differences in laws and practices via pragmatic and flexible approaches. This has led to the successful conclusion of the HCCH 2019 Judgments Convention, and will, no doubt, pave the way for the future acceptance of this Convention. The latter has been evidenced by the recent laudable development – the upcoming entry into force of the Convention on 1 September 2023. The success of a multilateral convention is normally measured by the number of Contracting Parties and how frequently the convention is applied. In this respect, the HCCH 2019 Judgments Convention demonstrates some promising features. First, there is a technical possibility for its 129 Back then, the Permanent Bureau noted that the provision represented ‘further progress in a direction which, although it is not the rule today, will be followed increasingly in future’, see ‘Issues Paper for the Agenda of the Special Commission of June 1999’, prepared by the Permanent Bureau in May 1999 point 35. 130 Such as: the International Hague Network of Judges within the HCCH; the 1997 UNCITRAL Model Law on Cross-Border Insolvency (Chapter IV, Arts 25–27); ILA Resolution 1/2000, para 5.2. See also, ‘Survey of Mechanisms for Judicial Coordination and Cooperation’, prepared by the Permanent Bureau.

Lessons Learned from the Convention  335 wide acceptance, as the Convention adopts rules that are commonly accepted under national law,131 and it would require fewer changes to be made in the domestic law of Contracting Parties. In addition, the engagement of diverse stakeholders in the negotiations and a high number of representatives increase the possibility of the Convention being widely accepted as a valuable output of the work of the HCCH. Furthermore, as the HCCH 2019 Judgments Convention provides a global solution to the lack of an international framework for recognition and enforcement, it would bolster international trade and enhance access to justice. Increased global interconnectedness would certainly also provide an effective motivation to encourage national policymakers to consider joining the Convention. Undoubtedly, the many decades of efforts and commitment devoted to the development of the HCCH 2019 Judgments Convention would equally benefit the Jurisdiction Project. The Project, although still named the Jurisdiction Project, is now focusing on the development of a hard-law instrument dealing with concurrent proceedings in court-to-court cases. Indeed, increased interconnectedness would support such a convention that aims to enhance access to justice and contribute to international trade and investment. In this regard, the complexity of the Project cannot be overlooked: the Working Group will still need to face intricate challenges and tackle manifold issues. Of course, surmounting similar obstacles is not new to the HCCH and the avid negotiators involved in the discussions, as evidenced by the success of many of its previous Conventions. In this context, negotiators of the future Convention are encouraged to continue their dialogues and exchanges to build up further trust among themselves and adopt pragmatic, flexible and creative approaches to bridge their differences. When doing so, the practical operation of the future Convention and the efficiency of resolving concurrent proceedings should remain as key considerations. Despite all the challenges faced by the Project, it is certainly plausible to conclude a meaningful Convention, ie, one which is widely accepted and can benefit the legal community and international trade and investment. This also echoes the HCCH’s continuous endeavours in fulfilling its mandate to ‘work for the progressive unification of the rules of private international law’,132 and contributes to achieving the UN Sustainable Development Goals.

131 See Ilija Rumenov, ch 10 in this volume (for South-Eastern European States); Adeline Chong, ch 12 in this volume (for ASEAN States). 132 Art 1 HCCH Statute.

336

16 International Commercial Arbitration and Judicial Cooperation in Civil Matters: Towards an Integrated Approach JOSÉ ANGELO ESTRELLA FARIA*

[S]i nihil praeteriret, non esset praeteritum tempus, et si nihil adveniret, non esset futurum tempus Augustinus, Confessiones, Liber 11, caput 14, 17

I. Introduction The adoption of the HCCH 2019 Judgments Convention is a significant achievement in the international unification of law, and its implementation by States will contribute to enhancing legal predictability and the enforceability of civil and commercial obligations. The following remarks focus on the relationship between the Convention and the existing international framework for commercial arbitration – and the potential for them to become mutually supportive. Much has been written about the respective comparative advantages and disadvantages of arbitration and court litigation for the settlement of international civil or commercial disputes. It is not the intention here to repeat, confirm or refute any of the well-known arguments that have been put forward in one or the other sense. However, before discussing the relationship between the HCCH 2019 Judgments Convention and the existing international framework for commercial arbitration, it is useful to emphasise the divergent prisms from which we look at one and the other sets of rules. Apart from the various features that make arbitration an attractive dispute settlement mechanism, commercial arbitration has so far enjoyed the unparalleled advantage of being supported by a widely adopted universal enforcement mechanism through the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).1 This unique mechanism made arbitration a natural choice for dispute settlement, but not necessarily

* Principal Legal Officer, International Trade Law Division, United Nations Office of Legal Affairs (UNCITRAL Secretariat). Former Secretary-General of the International Institute for the Unification of Private Law (UNIDROIT). This chapter expresses the author’s own personal views, which should not be taken to reflect the views of the United Nations. 1 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) UNTS, 330, 3.

338  José Angelo Estrella Faria or in every instance because the parties wished to avoid the judiciary. Indeed, the choice of arbitration was more often than not the result of a positive consideration, namely the parties’ wish to take advantage of the only workable dispute settlement mechanism for international commercial disputes in the absence of transnational courts or of an effective mechanism for the enforcement of court decisions. Commercial arbitration was – and to some extent still is nowadays – the ‘only game in town’.2 It may be too early to speculate about the Convention’s practical impact and whether it will affect parties’ preferences in the future, but the availability of this additional instrument is in itself a great step towards broadening the range of options that the parties can choose from. Some may even go further and see the dawn of a new ‘competition’ between different dispute settlement mechanisms.3 This is not, however, the angle from which the following remarks consider the HCCH 2019 Judgments Convention. The perspective of the United Nations Commission on International Trade Law (UNCITRAL or Commission) is necessarily neutral, as its work is not to develop tools to favour any particular industry, region or professional group as opposed to another. The mandate of UNCITRAL is to promote the harmonisation of the law of international trade with a view to facilitating commercial transactions and ultimately stimulating economic development. From that perspective, UNCITRAL welcomes the HCCH 2019 Judgments Convention for two main reasons. First, because it fills a gap especially in those areas or regions where arbitration is not so widely used, either out of an industry’s preference for court litigation or because of restrictions on arbitrability. Second, because the drafters of the Convention have taken care to avoid any unnecessary disruption of the current framework for commercial arbitration and other out-ofcourt dispute settlement mechanisms and ensure that the two systems will complement each other. Before we consider these prospects, however, it is useful to place the HCCH 2019 Judgments Convention and the existing international framework for commercial arbitration into perspective and briefly recapitulate the state of legal harmonisation in each area. The different stages of development of international law are key elements to assess the prospective role and interplay between these instruments in the future.

II.  The Uneven State of International Legal Harmonisation on Dispute Settlement The rapid pace of international law-making in recent years misleads the public and sometimes even experienced practitioners to overlook the enormous amount of time and effort that went into creating the foundations for the legal developments that came to fruition in the last two to three decades. Few people know, for example that the first attempts to create a treaty-based framework for the recognition and enforcement of court judgments date to the second half of the nineteenth century,4 and that the HCCH 2019 Judgments Convention is the third attempt since the Second World War to regulate this matter at the global level.5 2 Yves Fortier KC, quoted in G Herrmann, ‘Does the World Need Additional Uniform Legislation on Arbitration? The 1998 Freshfields Lecture’ (1999) 15 Arbitration International 211, 215. 3 J Landbrecht, ‘Commercial Arbitration in the Era of the Singapore Convention and the Hague Court Conventions’ (2019) 37 ASA Bulletin 871. 4 Following a proposal by the Dutch government (see H Schack, ‘Hundert Jahre Haager Konferenz für IPR: Ihre Bedeutung für die Vereinheitlichung des Internationalen Zivilverfahrensrechts’ (1993) 57 Rabels Zeitschrift für ausländisches und internationales Privatrecht 224, 227). 5 See Ning Zhao, ch 15, section II, in this volume.

Relationship to Arbitration  339 Equally, while most practitioners know that the New York Convention had precedents in the interwar period, few people know that even the idea of creating a uniform international standard for domestic laws on arbitration proceedings – which the UNCITRAL Model Law on International Commercial Arbitration6 has undoubtedly achieved – also predates the New York Convention. The international harmonisation of rules governing arbitration proceedings has indeed a long history and dates back to the years immediately following the First World War. To the extent that this long evolution has also contributed to the development of a common understanding of the needs of arbitration across legal families, it may be worthwhile to recapitulate it briefly to illustrate the impact that uniform law has had on legal practice, and vice versa. Despite the breakdown of trade and investment relations brought about by the First World War, arbitration was rapidly expanding in the 1920s. Yet, the laws of many countries invalidated arbitration clauses that excluded courts in favour of foreign arbitration. Moreover, the enforcement of foreign awards faced much the same obstacles as the enforcement of foreign judgments and was often exposed to extensive scrutiny in setting-aside procedures. At the request and with the support of the International Chamber of Commerce (ICC), the League of Nations developed two treaties within four years: a protocol which affirmed the validity of arbitration agreements,7 and a convention setting out rules for the execution of arbitration awards in foreign countries.8 Despite their relative success, both the 1923 Protocol and the 1927 Convention were of limited operation. Except in a few general respects, they covered only the end result of arbitration and not the process itself. National laws still diverged in many questions. Therefore, it is not surprising that UNIDROIT, created in 1926 under the auspices of the League of Nations, immediately turned its attention to the possible need for supplementing the 1923 Protocol and the 1927 Convention as regards the actual conduct of arbitration proceedings,9 and decided to prepare a uniform law on arbitration. Interrupted by the Second World War, the work resumed in 1945 at the initiative of the ICC, and in 1954 the UNIDROIT Governing Council approved the draft of a ‘Uniform Law on Arbitration in respect of International Relations of Private Law and Explanatory Report’.10 However, by that time the ICC had become less optimistic about the feasibility of the harmonisation of domestic laws and favoured instead a more limited work aimed at correcting the obvious deficiencies that had prevented the satisfactory operation of the 1923 Protocol and the 1927 Convention. The ICC turned its request to the United Nations Economic and Social Council (ECOSOC),11 which paved the way to the adoption of the New York Convention in 1958.

6 (Model Arbitration Law). See Official Records of the General Assembly, Fortieth Session, Supplement No 17 (A/40/17), annex I (reproduced in Yearbook of the United Nations Commission on International Trade Law (UNCITRAL Yearbook), vol XVI: 1985, Part Three, ch I). The Model Arbitration Law is designed to assist States in reforming and modernising their laws on arbitral procedure, so as to take into account the particular features and needs of international commercial arbitration. 7 Protocol on Arbitration Clauses, Geneva, 24 September 1923 (League of Nations, Treaty Series, vol XXVII, No 678, 157) (reproduced in United Nations, Register of Texts of Conventions and other Instruments concerning International Trade Law, United nations, New York, 1971, vol II, 8) (Register of Texts (1923 Protocol). 8 Convention on the Execution of Foreign Awards, Geneva, 26 September 1927 (League of Nations, Treaty Series, vol XCII, No 2096, 301) (reproduced in United Nations, Register of Texts, vol II, 13) (1927 Convention). 9 On the basis of a comprehensive report prepared by the great French comparatist Professor René David, Rapport sur l’arbitrage conventionnel en droit privé – étude de droit comparé par René David (UDP Études II, SdN 1932, CD 1932). 10 Projet d’une loi uniforme sur l’arbitrage dans les rapports internationaux en droit privé et Rapport explicatif/Draft of a Uniform Law on Arbitration in respect of International Relations of Private Law and Explanatory Report (UDP 1954 – Projet III (3), available at: www.unidroit.org/french/documents/1954/etude03/s-03-project03-f.pdf). 11 FP Donovan, ‘The Unification of International Commercial Law – Sale and Arbitration’ (1959) 2 Melbourne University Law Review 172, 188.

340  José Angelo Estrella Faria The idea of harmonising the law governing arbitration proceedings was not entirely abandoned. The Council of Europe showed interest in the UNIDROIT draft uniform law on arbitration,12 and used it as a basis for developing the European Convention providing a Uniform Law on Arbitration, adopted on 20 January 1966.13 The Council of Europe Convention, as we know, was not successful, as most countries at that time resisted the idea of harmonising domestic laws on the subject matter.14 That situation would eventually change after the establishment of UNCITRAL, in 1966.15 As it completed the work on the UNCITRAL Arbitration Rules (1976),16 UNCITRAL took up the idea to promote the harmonisation of domestic laws governing arbitration proceedings, this time under more favourable conditions,17 given the success of the New York Convention. The result was the UNCITRAL Model Law on International Commercial Arbitration (Model Arbitration Law), which was adopted in 1985 after three years of intensive work and revised in 2006 to include a chapter on interim measures and revised provisions on the form of arbitration agreement.18 The UNCITRAL Model Arbitration Law and the 1966 Council of Europe Convention providing a Uniform Law are of course different in form and style, but the various references to the Uniform Law in the preparatory work that set out the scope and essential features of the future Model Law confirms the influence of the Uniform Law on the subsequent development of the Law of International Arbitration.19 UNCITRAL’s work on arbitration has continued, uninterrupted, ever since, resulting in a comprehensive set of treaties, legislative models, contractual tools and practical guidance that include, the 1980 UNCITRAL Conciliation Rules20 (amended and renamed UNCITRAL Mediation Rules in 2021)21 and the UNCITRAL Model Law on International Commercial Conciliation (2002)22 (amended and renamed in 2018 as UNCITRAL Model Law on International Commercial

12 HC Kroger, ‘The Council of Europe and Unification of Private Law’ (1968) 16 American Journal of Comparative Law 16 127, 139. 13 European Convention providing a Uniform Law on Arbitration (Strasbourg, 20 January 1966), European Treaty Series, No 56 (Council of Europe Convention). 14 Indeed, only Austria and Belgium signed the Council of Europe Convention. 15 General Assembly Resolution 2205 (XXI) of 17 December 1966 (reproduced in Yearbook of the United Nations Commission on International Trade Law (UNCITRAL Yearbook) (1968–1970) 1: Part One, ch II, section E). 16 UNCITRAL Arbitration Rules (1976) (Official Records of the General Assembly, Thirty-first Session, Supplement No 17 (A/31/17) para 57 (reproduced in UNCITRAL Yearbook, vol VII: 1976, Part One, ch II, section A)) (‘Arbitration Rules’). Widely used in ad hoc arbitrations as well as administered arbitrations, the Arbitration Rules were revised in 2010 and now include provisions dealing with, amongst others, multiple-party arbitration and joinder, liability, and a procedure to object to experts appointed by the arbitral tribunal (Official Records of the General Assembly, Sixty-fifth Session, Supplement No 17 (A/65/17), annex I (reproduced in UNCITRAL Yearbook, vol XXXVII: 2010, Part One, section A, annex I)). After the adoption of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (Rules on Transparency) in 2013, a new Article 1, paragraph 4, was added to the text of the Arbitration Rules (as revised in 2010) to incorporate the Rules on Transparency for arbitration initiated pursuant to an investment treaty concluded on or after 1 April 2014. 17 KL Lynch, The Forces of Economic Globalization: Challenges to the Regime of International Commercial Arbitration (Kluwer Law International 2003) 208 et seq. 18 See Official Records of the General Assembly, Sixty-first Session, Supplement No 17 (A/61/17), paras 87–181 (I (reproduced in UNCITRAL Yearbook, vol XXXVII: 2006, Part One). The 2006 version of the Model Arbitration Law is contained in United Nations publication, Sales No E.08.V.4). 19 See Report of the Secretary-General: possible features of a model law on international commercial arbitration (A/CN.9/207, reproduced in UNCITRAL Yearbook, vol XII: 1981, 75–92). 20 See Official Records of the General Assembly, Thirty-fifth Session, Supplement No 17 (A/35/17) ch V, section A, para 106 (reproduced in UNCITRAL Yearbook, vol XI: 1980, Part Three, annex II). 21 See Official Records of the General Assembly, Seventy-sixth Session, Supplement No17 (A/76/17) annex III. 22 See Official Records of the General Assembly, Fifty-seventh Session, Supplement No 17 (A/57/17) annex I (reproduced in UNCITRAL Yearbook, vol XXXIII: 2002, Part Three, annexes I and II).

Relationship to Arbitration  341 Mediation and International Settlement Agreements Resulting from Mediation).23 The work of UNCITRAL in the area of mediation – a natural complement to the work on arbitration – received a significant treaty foundation with the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation),24 which, inspired by the New York Convention, introduces a mechanism for the international recognition of settlement agreements. The distant origins of the UNCITRAL Model Arbitration Law, as well as the extent of work done since it was adopted, are worth remembering because they illustrate the existence, for nearly a century, of a growing consensus not only for international cooperation in recognising and enforcing arbitral awards, but also for the harmonisation of domestic laws governing arbitral proceedings. The wide implementation of a common standard has increased confidence in the reliability of several countries as seats for arbitration proceedings, one of the factors considered by practitioners when choosing a venue for arbitration. Furthermore, the abundant case law on the New York Convention and the UNCITRAL Model Arbitration Law, and their dissemination including in various languages,25 help to further create a common understanding of arbitration and provide confidence to practitioners on the interpretation of both texts. The extent of harmonisation of civil procedure law at the global level is not comparable. Transnational civil procedure, and in particular the recognition and enforcement of judgments in civil and commercial matters, has been the subject of international negotiations for a long time,26 but only moderately successful at the global level, with the exception of the HCCH 1965 Service Convention,27 the HCCH 1970 Evidence Convention,28 the HCCH 2005 Choice of Court Convention,29 and to a lesser extent the HCCH 1954 Convention on Civil Procedure.30 Most aspects of civil procedure have remained deeply domestic subjects, despite the existence of some common ground across jurisdictions and legal traditions, as testified by the ALI/UNIDROIT Principles of Transnational Civil Procedure.31 The situation in Europe is obviously different, as a considerable unification was already achieved through the Brussels Convention32 and the Lugano Convention33 and has been further consolidated through the Brussels I Regulation.34 Yet, at the 23 See Official Records of the General Assembly, Seventy-third Session, Supplement No 17 (A/73/17) annex II. The 2018 amendments include a new section on international settlement agreements and their enforcement. 24 General Assembly Resolution 73/198, adopted on 20 December 2018, Annex (reproduced in UNCITRAL Yearbook, vol XXXIII: 2002, Part Three). 25 eg, through the UNCITRAL website (uncitral.un.org/en/case_law). 26 See H Schack, ‘Perspektive eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens’ (1993) 1 Zeitschrift für europäisches Privatrecht 306, 306–16. 27 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, The Hague, 15 November 1965 (UNTS 658, 164). 28 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, The Hague, 18 March 1970 (UNTS, vol 847 (1972), No 12140, 241). 29 Convention of 30 June 2005 on Choice of Court Agreements (available at: www.hcch.net/en/instruments/ conventions/full-text/?cid=98) (HCCH Choice of Court Convention). 30 Convention on Civil Procedure, The Hague, 1 March 1954 (UNTS 286, 265). 31 ALI/UNIDROIT, Principles of Transnational Civil Procedure – As Adopted and Promulgated – by the American Law Institute and by UNIDROIT (Cambridge University Press 2006). 32 Convention on jurisdiction and the enforcement of judgments in civil and commercial Matters, Brussels, 27 September 1968 (UNTS 1262, 153; for a consolidated version incorporating amendments introduced by Conventions on the accession of the New Member States, see [1998] OJ C 27/36, 1). 33 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, Lugano, 16 September 1988 (UNTS 1659, 202) and Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (with protocols and annexes and procès-verbal), Lugano, 30 October 2007 (UNTS 2658, 197). 34 Council Regulation No 44/2001 (EC) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ([2001] OJ L12/1); Regulation (EU) no 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments

342  José Angelo Estrella Faria global level the area of recognition and enforcement of judgments has remained a particularly difficult one,35 resulting in one largely unsuccessful instrument, the HCCH 1971 Judgments Convention36 and one abandoned attempt in the form of the ‘first judgments project’.37 The pragmatic decision to separate jurisdiction questions from recognition and enforcement of judgments38 paved the way for the separate negotiation and adoption of the HCCH 2005 Choice of Court Agreements Convention.39 While some purists may regret the split of the texts in view of the obvious link between jurisdiction and enforceability, this decision was instrumental to facilitate the development of the consensus leading up to the HCCH 2019 Judgments Convention.40 The difference in the extent and depth of global legal harmonisation in the areas of commercial arbitration and civil procedure – which is evident from this brief recapitulation – means that commercial arbitration and court litigation currently take two completely different positions in terms of parties’ preference. At the present stage of development of international law, they are hardly comparable alternative options for dispute settlement, but the HCCH 2019 Judgments Convention may contribute to changing that situation, and this would be a welcome development.

III.  Practical Benefits of a Broader Palette of Dispute Settlement Methods Parties who currently choose international commercial arbitration give various reasons for their choice. The enforceability of the award is usually the most frequently cited by practitioners, but it is by far not the only one.41 Cross-border litigation – alone or combined with an alternative

in civil and commercial matters (recast) ([2012] OJ L351/1). The adoption, in 2020, by the European law Institute (ELI) and UNIDROIT of the ELI/UNIDROIT Model Rules on Civil Procedure (www.europeanlawinstitute.eu/fileadmin/ user_upload/p_eli/Publications/200925-eli-unidroit-rules-e.pdf) represents a significant contribution to deepening the harmonisation of civil procedure in Europe. 35 H Schack, ‘Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommen’ (1993) 1 Zeitschrift für europäisches Privatrecht 306; Y Oestreicher, ‘“We’re on a Road to Nowhere” Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments’ (2008) 42 International Lawyer 59. 36 Convention on the recognition and enforcement of foreign judgments in civil and commercial matters, The Hague, 1 February 1971 (UNTS 1144, 257). 37 See HCCH, Preliminary draft Convention on jurisdiction and foreign judgments in civil and commercial matters, adopted by the Special Commission and Report by P Nygh and F Pocar, Preliminary Document No 11 of August 2000 for the attention of the Nineteenth Session of June 2001 (available at: www.hcch.net under ‘Instruments/Conventions,Protocols and Principles’, ‘No 37’, then ‘Preliminary Documents’). 38 HCCH, Convention of 30 June 2005 on Choice of Court Agreements, Explanatory Report by T Hartley and M Dogauchi, Off-print of the Proceedings of the twentieth session, The Hague (HCCH 2020) para 78, 26–27. 39 Convention of 30 June 2005 on Choice of Court Agreements (available at: www.hcch.net/en/instruments/ conventions/full-text/?cid=98) (HCCH Choice of Court Convention). 40 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) para 78. 41 According to the 2018 International Arbitration Survey by White & Case and Queen Mary University of London, the two most frequently selected options explaining parties’ choice of arbitration were ‘enforceability of awards’ (64%) and ‘avoiding specific legal systems/national courts’ (60%). This reinforces the continued success of the New York Convention and the benefit to parties of eluding the potential biases and specificities of domestic courts. The third and fourth spots were taken by ‘flexibility’ (40%) and the ‘ability of parties to select arbitrators’ (39%), respectively, followed in fifth place by ‘confidentiality and privacy’ (35%) (White & Case and Queen Mary University of London 2018 International Arbitration Survey: The Evolution of International Arbitration, 7). Arbitration remains the preferred dispute settlement method for 90% of respondents, either on a stand-alone basis (31%) or in conjunction with alternative dispute resolution (ADR) (59%) in the 2021 survey (White & Case and Queen Mary University of London, 2021 International Arbitration Survey: Adapting arbitration to a changing world, 2).

Relationship to Arbitration  343 dispute resolution method – is the preferred dispute settlement method of only a small fraction of practitioners answering international surveys.42 In the short or medium term, it is unlikely that parties will switch significantly to choosing court proceedings only because of the better prospects of enforcement of court judgments under the HCCH 2019 Judgments Convention, as most of the other factors that influence their decisions will remain unaffected by the Convention at least in the near future. That does not mean to say that the Convention is not capable of bringing tangible benefits for international dispute settlement. For those parties, for instance, whose only or preponderant reasons for choosing arbitration has been the enforceability of the award, the Convention – once widely ratified – may indeed offer an attractive additional option for disputes involving parties in Contracting States of the Convention. The HCCH 2019 Judgments Convention is also likely to make a positive difference for those industries that have a traditional preference for court proceedings, for parties involved in disputes relating to issues that are not universally recognised as arbitrable and for parties and practitioners who – for one reason or another – feel more comfortable with the more structured procedures and specific remedies available in court proceedings. Financial institutions, for instance, have historically preferred State courts and shown some scepticism about the wider use of arbitration. In 2016, the ICC Commission on Arbitration and the ADR’s Task Force on Financial Institutions and International Arbitration released the results of a two-year study regarding the advantages of arbitrating disputes involving financial institutions that included interviews with more than 50 financial institutions around the world about their experience with international arbitration.43 The study does indicate a growing openness of financial institutions to agree on arbitration at least for certain types of dispute,44 but it notes the persisting preference for court litigation, at least in key financial centres,45 with 70 per cent of interviewees not being aware of whether their financial institutions had participated in any international arbitration proceedings in the last five years.46 The ratification of the HCCH 2019 Judgments Convention by countries with important international financial centres would strengthen even further the perception of legal certainty of the financial institutions operating in those places and greatly improve the enforcement process, thus helping to lower transaction costs in transnational banking. A second group of businesses and practitioners for whom the HCCH 2019 Judgments Convention may have a positive impact are parties involved in disputes relating to issues that are not universally recognised as arbitrable, or parties that are prevented by law or practice from submitting their disputes to arbitration. Limitations on arbitrability can be both ratione personae (as in those countries where State organs or State-owned corporations are not authorised to agree on arbitration) as well as ratione materiae (where the law makes certain matters not capable of

42 ‘[A]n overwhelming majority of the respondent group (90%) showed a clear preference for arbitration as their preferred method of resolving cross-border disputes, either as a standalone method (31%) or in conjunction with ADR (59%). Only an aggregate of 4% is equally split between “ADR only” and “cross-border litigation” as standalone options, while 6% indicated a preference for “cross-border litigation together with ADR”’ (White & Case and Queen Mary University of London, 2018 International Arbitration Survey: The Evolution of International Arbitration, 5). 43 International Chamber of Commerce, ICC Commission Report: Financial Institutions and International Arbitration (Paris 2016). 44 Financial institutions tend to use international arbitration when: (i) the transaction is particularly complex; (ii) confidentiality is a concern; (iii) the counterparty is a state-owned entity; or (iv) the counterparty is in a jurisdiction where the enforcement of an arbitral award under the New York Convention will be easier than enforcement of a court judgment (ibid, para 42). 45 ie, New York, London, Frankfurt, Hong Kong (ibid, para 4). 46 ibid, para 41.

344  José Angelo Estrella Faria settlement by arbitration). There is no uniform catalogue of arbitrable (or non-arbitrable) matters, and neither is there a uniform rule on which law governs arbitrability (ie, the law of the contract, the law of the place of arbitration or the law of the place of enforcement).47 Commercial subject matters reserved to the courts are in some countries determined by case law only and in others by various statutes: for instance, those dealing with anti-trust or unfair competition, securities, intellectual property, labour, or company law. Various States include in their arbitration law a general formula, in modern times going beyond the traditional formula of ‘what parties may compromise on or dispose of ’ to cover, for example, ‘any dispute involving property’ or ‘any claim involving an economic interest’ (vermögensrechtlicher Anspruch), as is the case in Switzerland and Germany.48 Despite the general international trend towards easing restrictions and expanding the universe of disputes capable of settlement by arbitration, arbitrability is still not unlimited.49 The better basis for international enforceability of court judgments provided by the Convention will greatly improve the situation of parties to those disputes traditionally treated as non-arbitrable under domestic law, even though some of them (such as insolvency-related disputes) are excluded from the scope of the Convention. A third group of businesses and practitioners whose choice of dispute settlement method may eventually be influenced by the availability of an international framework for recognition and enforcement of court judgments are those who feel more comfortable with more structured procedures and specific remedies provided under court proceedings. Party autonomy is the main foundation of arbitration, and the parties’ flexibility in shaping the procedure and adapting it to their needs is one of the main reasons for the popularity of arbitration among international practitioners. Nevertheless, in some regions practitioners have tended to favour formalism in arbitral proceedings either by advocating the applicability in arbitration of remedies provided in constitutional law to ensure due process, or by transposing to the arbitration environment certain evidence-gathering and case management techniques that are known from court litigation. In some of these regions, this ‘judicialisation’ of arbitral proceedings reflects concerns about the fairness of a process not yet deeply rooted in the local legal tradition and some reluctance to accept the finality of the arbitral award once rendered. Practitioners accustomed to an elaborate system of interlocutory reviews or appeals may miss the types of remedies available under their constitution or civil procedure laws to protect the parties from, and correct the effects of, judicial arbitrariness.50 Of course, these types of control mechanisms are not an inherent element of commercial arbitration and are somehow at odds with its voluntary and consensual nature.51 Parties who wish to obtain an internationally enforceable 47 B Hanotiau, ‘The Law Applicable to Arbitrability’ (2014) 26 Singapore Academy of Law Journal Special Issue 874. 48 Herrmann (n 2) 219. See Art 177(1) Swiss Federal Act on Private International Law (IPRG), AS 1988 1776 (‘Any claim involving an economic interest may be submitted to arbitration’); § 1030(1) German Code of Civil Procedure (ZPO) (version promulgated on 5 December 2005, Federal Law Gazette [Bundesgesetzblatt] I, 3202). 49 For an overview of the current state of the law, see GB Born, International Commercial Arbitration, Vol I (Wolters Kluwer 2021) 1027 et seq. 50 H Diaz-Candia, ‘Current Arbitration Trends in Latin America’ (2017) 6 Indian Journal of Arbitration Law 150; M Mendoza Londono, ‘Constitutional Control over International Awards: A Latin American Trend’ (2021) 9 Indian Journal of Arbitration Law 51. 51 In Latin American countries, the tendency towards judicialisation is strengthened by the very prism from which practitioners and legislators view arbitration, which is often treated as a substitute for civil procedure. The terminology used in the legislation of many Latin American countries itself is strongly inspired by the terminology found in codes of civil procedure, leading to the perception of arbitration as a para-judicial dispute settlement mechanism. An eloquent example of the risk of excessive judicialisation of arbitration proceedings is the use of constitutional writ procedures (‘juicio de amparo’, ‘mandado de segurança’) to obtain court injunctions and interim measures to protect parties against alleged violations of due process by acts of arbitral tribunals, sometimes leading to protracted court litigation (see R Bustamante Alarcón, ‘La constitucionalización del arbitraje en el Perú: algunas consideraciones en torno a la

Relationship to Arbitration  345 decision, but who at the same time are not prepared to renounce such checks and balances, may indeed find the option of transnational litigation more attractive after the entry into force of the HCCH 2019 Judgments Convention. In other countries, the legal framework for arbitration may have a longer history, but practitioners, by their training, feel more at ease with court litigation and wish to take advantage, also in arbitration, of the broad powers that their laws give to courts in terms of evidence production, case management and witness hearings. While it may be an exaggeration to portray this development as a ‘culture clash’ in international arbitration,52 it is true that some of the powers that tribunals are being increasingly expected to exercise may be unusual in the commercial arbitration traditions of regions that favour more restraint in the tribunal’s powers.53 It has been said that widespread ratification and accession to the HCCH 2019 Judgments Convention will ‘change the climate from the simple existence of an enforcement mechanism for arbitration and none for litigation, to a balanced enforcement mechanism for both’ thus requiring that transaction lawyers ‘draft choice of forum clauses with greater attention to the real differences between arbitration and litigation’.54 Those transaction lawyers who would have preferred arbitration to mirror as much as possible their own domestic court proceedings, but have felt compelled to contemplate arbitration out of concerns about the enforceability of the judgment, may in the future avail themselves of a more natural choice of dispute settlement method.

IV.  Possible Positive Impact on Domestic Court Practice The development of a comprehensive framework for commercial arbitration both at the international and the domestic level has been a strong support to widen the use of arbitration, which translated in practice by an exponential expansion in the services offered to parties wishing to submit their disputes to arbitration. When the UNCITRAL Model Arbitration Law was adopted in 1985, there were some 65 institutions handling international arbitral proceedings in 43 countries, most of them in Europe.55 Thirty-five years later, there seem to be more than 270 arbitral institutions active in 77 countries, a large number of them at least officially capable of handling international cases.56 That means an increase of more than 200 institutions with an international

relación del arbitraje con la Constitución, los derechos fundamentales y el Estado de derecho’ (2013) 71 Derecho PCUP – Revista de la Facultad de Derecho de la Pontificia Universidad Católica del Perú 387). 52 JM Barkett and J Paulsson, ‘The Myth of Culture Clash in International Commercial Arbitration’ (2009) 5 Florida International 1; see also SL Karamanian, ‘Overstating the Americanization of International Arbitration: Lessons from ICSID’ (2003) 1 Ohio State Journal on Dispute Resolution 5. 53 ‘American lawyers tend to see the courts and arbitration as two different forums for the litigation of commercial disputes, but often they use the same litigation techniques in both. On the other hand, the Europeans tend to litigate before the courts and arbitrate before an arbitrator’ (E Bergsten, ‘The Americanization of International Arbitration – An Address at the International Law Students Association Conference at Pace Law School – October 27–29, 2005’ (2006) 18 Pace International Law Review 289, 300). 54 RA Brand, ‘Arbitration or Litigation – Choice of Forum after the 2005 Hague Convention Choice of Court Agreements’ [2009] Annals of the Faculty of Law in Belgrade International Edition 23–35, 35. 55 ICCA Yearbook Commercial Arbitration, v X. These figures do not include dispute settlement bodies relating to a specific industry or market, such as arbitration chambers of certain goods, such as those in the cotton and coffee chambers of commerce, which have their own mechanisms. 56 According to research and calculations done by the UNCITRAL Secretariat on the basis of data retrieved from the ICCA International Handbook Commercial Arbitration, 2020, last updated by supplement 116, 2021, complemented by information from additional sources. These figures do not include dispute settlement bodies relating to a specific industry or market, such as arbitration chambers of certain goods, such as those in the cotton and coffee chambers of commerce, which have their own mechanisms.

346  José Angelo Estrella Faria profile, not only in those countries where such institutions already existed, but also in many countries that had no arbitral institutions at the time the Model Arbitration Law was adopted. It is worth noting the large number of developing countries where national or regional arbitration centres now operate.57 Of course, to some extent this is a natural phenomenon reflecting the overall growth in the world’s economy since 1985 as well as other factors, such as globalisation, the impact of the internet and information technology, the rapid developments in transport logistics and supply chain integration. Yet, the growth is remarkable, as the arbitration industry seems to have grown more than many others. One important consequence of this phenomenon is a perceptible international competition to attract the arbitration ‘business’. Apart from their legal and formal role, arbitration centres generate an economically measurable benefit (employment, investment, profit, travel and accommodation expenses, conference revenues, etc). This international competition translates into practical measures taken by the various countries to encourage arbitration domestically and to attract foreign arbitration cases. The enactment of arbitration laws that meet recognised international standards is one of the basic measures that most countries have taken in that respect, and this has nearly invariably included the enactment of the UNCITRAL Model Arbitration Law, which functions as a ‘quality seal’ of a country’s legal framework for commercial arbitration. Can we anticipate a similar development in the area of court litigation? Again, it is too early to speculate about the future impact of the HCCH 2019 Judgments Convention on parties’ choices, and the extent to which wide ratification of the Convention may lead to an increased use of the judiciary for adjudicating international disputes beyond their current range. Assuming, however, that this could happen, it would not be far-fetched to anticipate a positive reverse impact on the domestic framework for civil procedure and standards for court case management. To some extent, the trend towards making the domestic judiciary more attractive to handle international litigation is already visible. Examples include initiatives in Asia and the Middle East58 as well as in Europe59 to emulate some features of international commercial arbitration in 57 The International Council for Commercial Arbitration (ICCA) currently lists 267 arbitration centres in its website (see: www.arbitration-icca.org/institutes). Apart from purely national arbitration centres, too numerous to be listed here, several developing countries now host institutions that administer international cases (mostly but not exclusively, from their region, such as the Asian International Arbitration Center (Kuala Lumpur, Malaysia); the Cairo Regional Centre for International Commercial Arbitration (CRCICA) (Egypt); the Dubai International Arbitration Centre (DIAC); the Regional Centre for International Commercial Arbitration Lagos (RCICAL) (Nigeria); the Nairobi Centre for International Arbitration (NCIA) (Kenya). 58 The most famous example is the Singapore International Commercial Court. Other examples include the Hong Kong Court of Final Appeal and the China International Commercial Court (CICC) created in Shenzhen and Xian under the authority of the People’s Supreme Court. The Gulf countries count three such international courts: the Dubai International Financial Centre Courts, the Qatar International Court and the Abu Dhabi Global Market Courts (see J Walker, ‘Specialised International Courts: Keeping Arbitration on Top of its Game’ (2019) 85 Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 2; see further, D Ruckteschler and T Stooss, ‘International Commercial Courts: A Superior Alternative to Arbitration?’ (2019) 36 Journal of International Arbitration 431; A Godwin, I Ramsay and M Webster, ‘International Commercial Courts: The Singapore Experience’ (2017) 18 Melbourne Journal of International Law 219; D Demeter and KM Smith, ‘The Implications of International Commercial Courts on Arbitration’ (2016) 33 Journal of International Arbitration 441; J Landbrecht, ‘The Singapore International Commercial Court (SICC) – an Alternative to International Arbitration?’ (2016) 34 ASA Bulletin 112). 59 eg, the creation of the Netherlands Commercial Court in 2018, and the introduction of English as a hearing and pleading language before the Chambre internationale at the Tribunal de commerce in Paris; or, in Germany, before the Kammern für internationale Handelssachen at the Oberlandesgericht Köln and the Landgerichte Frankfurt am Main and Hamburg. More broadly, the Upper House (Bundesrat) of the German Parliament has recently approved a bill proposed by the states of Nordrhein-Westfalen and Hamburg to strengthen the courts in economic disputes. The explanatory memorandum refers to increasing globalisation, the growing complexity of legal relationships and the changed expectations placed on the judiciary to justify the proposed adjustments to procedural law in order to ensure ‘the high quality and attractiveness of civil justice, especially in commercial disputes’ (Deutscher Bundestag, 19. Wahlperiode, Entwurf eines Gesetzes zur Stärkung der Gerichte in Wirtschaftsstreitigkeiten, Drucksache 19/30745, 16 June 2021, 1).

Relationship to Arbitration  347 court proceedings to be heard by ‘truly international’ courts within the domestic judiciary so as to render it more attractive for handling international cases and thereby compete for the litigation business.60 Of course, appointing qualified judges to handle complex commercial cases, relaxing language requirements in filings, submissions and hearings, and giving parties and the court more autonomy in organising the proceedings, are all measures that enhance the attractiveness of a jurisdiction for settling commercial disputes. However, the final choice of the parties will also consider various other criteria, including the overall legal stability, the efficiency and integrity of procedures and court support services in the country. Some time ago there was a heated debate on the HCCH 2005 Choice of Court Convention, which some criticised for opening the doors of Contracting States to the automatic recognition of foreign rulings that are ‘subject to grave doubts as to independence, impartiality and competence in a very substantial number of cases’.61 An analysis of the conditions for recognition and enforcement of a foreign judgment pursuant to Article 5 of the HCCH 2019 Judgments Conventions, in combination with the grounds for refusing recognition and enforcement pursuant to Article 7 reveals, however, that the HCCH 2019 Judgments Convention offers ample means to prevent the automatic circulation of anomalous judgments and to dissipate most concerns in that respect (incidentally, a proper reading of Articles 8 and 9 of the HCCH 2005 Choice of Court Convention should also lead to the same result). Moreover, Contracting States will have a natural interest in seeing their judgments recognised and enforced in other Contracting States, and it is not naive or unrealistic to expect that concerns about lack of recognition on grounds such as fraud or violation of fundamental principles of procedural fairness may in the long term stimulate a trend towards raising local procedural rules and practices to meet internationally recognised standards. In other words, it may not be far-fetched to expect that, as more countries join the HCCH 2019 Judgments Convention, we make a natural move towards enhanced due process standards as a by-product of the countries’ participation in a treaty mechanism that may bar the recognition and enforcement of judgments that fail to meet acceptable procedural standards. Much the same way as arbitral tribunals are keen to abide by high standards so as not to jeopardise the enforceability of an award under the New York Convention,62courts in State Parties to the HCCH 2019 Judgments Convention may in the future pay increased attention to international standards of integrity and due process. In the light of the broader human rights and rule of law agenda of the United Nations, UNCITRAL warmly welcomes any institutionalised or spontaneous trends to raise the due process and integrity standards of domestic judiciary structures and procedures. Even if UNCITRAL is not involved in civil procedure law, the Commission is not indifferent to the way that domestic judiciary systems function. It is indeed a mistake to infer from

60 For a discussion of the economic implications of this development from the perspective of a ‘competition’ among legal systems, see H Hoffmann, Kammern für internationale Handelssachen Eine juristisch-ökonomische Untersuchung zu effektiven Justizdienstleistungen im Außenhandel (Nomos 2011). 61 GB Born, ‘The Hague Convention on Choice of Court Agreements: A Critical Assessment’ (2021) 169 University of Pennsylvania Law Review 2079, 2110 (Kluwer Arbitration Blog, 17 June 2021), available at: arbitrationblog.kluwerarbitration.com/2021/06/17/; see also, João Ribeiro-Bidaoui, ‘Hailing the HCCH (Hague) 2005 Choice of Court Convention, A Response to Gary Born’ (Kluwer Arbitration Blog, 21 July 2021), available at: arbitrationblog.kluwerarbitration. com/2021/07/21/. 62 A healthy and prudent concern that in practice may have assumed a dimension disproportionate to the actual instances of judicial scrutiny of arbitral awards (see KP Berger and J Ole Jensen, ‘Due process paranoia and the procedural judgment rule: a safe harbour for procedural management decisions by international arbitrators’ (2016) 32 Arbitration International 415).

348  José Angelo Estrella Faria the work of UNCITRAL in arbitration a fatalistic message that countries should promote wider use of arbitration and mediation as better alternatives to hopelessly slow, inefficient, or unreliable State courts. Apart from the need for a well-trained judiciary to apply the New York Convention as well as the domestic enactments of the Model Arbitration Law, many important legal instruments developed by UNCITRAL to improve the domestic business climate in other areas, such as sales law, secured transactions, carriage of goods, electronic commerce, insolvency, public procurement and public–private partnerships – to name but a few – rely primarily on domestic courts for their proper implementation. Also, because not all disputes arising out of these matters are universally recognised as arbitrable. Substantive business law is indeed only one component of a country’s legal system, and by itself no guarantee of economic benefit. The investment made in modernising substantive business law may be nullified if the inefficiency of procedural law stimulates breaches of contracts and increases litigation.63 Arbitration cannot and will not displace the judiciary, even less so for purely domestic transactions. It is unrealistic to expect that arbitration and mediation, however widely implemented at the domestic level they may become, will significantly decongest the courts.64 Improving the efficiency of the judiciary remains, therefore, a major point of concern in many countries. Every effort made to encourage reform and to improve domestic civil procedure should be welcomed and encouraged.65 Of course, the HCCH 2019 Judgments Convention itself is not the source of standards of fairness and efficiency, but common parameters can be expected to emerge from its application, particularly of Article 7. If, in addition to that, countries decide to enhance the attractiveness of their domestic judiciaries to promote the development of a local ‘judicial hub’ and encourage parties to choose their courts for handling international cases, parties to commercial contracts will indeed have greater options to choose from. The combined effects of such developments both for international and domestic business can only be positive.66 But for all those who think that this is an exercise in futurology, there are also other reasons for UNCITRAL to welcome the HCCH 2019 Judgments Convention.

63 This is why it has been said that any harmonisation concentrating on the substantive law only ‘stops half-way or even earlier’ (G Wagner, ‘The Economics of Harmonization: the Case of Contract Law’ (2002) 39 Common Market Law Review 995, 1022). 64 In the 1990s, for example, a continental strategy, funded by the Inter-American Development Bank, was developed to promote alternative methods of dispute resolution and reduce court congestion. Some evident achievements were noted: legislation on arbitration and mediation was modernised and harmonised in almost all the countries in the region and they have up-to-date laws that reflect international norms. Specialised human resources were trained in almost all the countries in the region. Qualified arbitrators and mediators are available, which was not the case at the beginning of the 1990s. But levels of congestion of courts are still high (‘Managing complexity: ITC’s experience in trade law technical assistance’ paper presented by Jean-François Bourque at the UNCITRAL Congress ‘Modern Law for Global Commerce (Vienna, 9–12 July 2007), available at: www.uncitral.org/>.uncitral/en/about/congresspapers. html. 65 In the words of a leading arbitrator and scholar: ‘The vision of splendid arbitrators prevailing over retrograde judges is a dangerous illusion. True, arbitration can go quite far as an autonomous mechanism filling a judicial vacuum. This may be an unavoidable and even salutary response, but it is not a long-term solution’ (J Paulsson, ‘Why Good Arbitration Cannot Compensate for Bad Courts – Freshfields Hong Kong University Arbitration Lecture’ (2013) 30 Journal of International Arbitration 345, 351–52). 66 On the significance of such an ‘integrated approach’ to increase parties’ choices in commercial dispute settlement, see, eg, M Weller, ‘The HCCH 2019 Judgments Convention: New Trends in Trust Management’ in C Benicke and S Huber (eds), National, International, Transnational: Harmonischer Dreiklang im Recht, Festschrift für Herbert Kronke (Gieseking 2020) 630 et seq.

Relationship to Arbitration  349

V.  Technical Complementarity between the HCCH 2019 Judgments Convention and the International Framework for Arbitration and Mediation Let us now turn to the technical aspects of the complementarity between the HCCH 2019 Judgments Convention and the international framework for arbitration and mediation. The Judgments Convention expressly excludes ‘arbitration and related proceedings’ from its scope.67 The Explanatory Report notes that this wide exclusion is intended to ‘prevent the Convention from interfering with arbitration and international conventions on this subject, particularly the 1958 New York Convention’.68 Of course, a convention on recognition and enforcement of court judgments is not intended to apply to arbitral awards as such, and hence not to their recognition and enforcement, which is already adequately covered by the New York Convention. Nevertheless, it is legitimate to ponder whether the practice of arbitration might benefit from giving cross-border recognition to judicial decisions (final or provisional) issued in support of arbitration proceedings. For instance, a judgment declining jurisdiction and referring the parties to arbitration; the confirmation of the validity of an arbitration clause, decisions on appointment or dismissal of arbitrators; decisions fixing the place of arbitration or extending the time limit for making awards or interim measures of protection. These are all court decisions that give effect to the parties’ agreement to arbitrate and support the orderly conduct of the proceedings, rather than interfering with them. Would arbitration therefore not benefit from treaty provisions that make these decisions enforceable abroad? In the past, there were doubts as to the possibility of issuing provisional measures in commercial arbitration and, where admitted, the arbitral tribunal’s power to order them was subject to several limits.69 The original version of the Model Arbitration Law already affirmed the compatibility of court-ordered interim measures of protection with the parties’ agreement to arbitrate,70 but its drafters refrained from offering further guidance on the power of the tribunal itself to order interim measures. The enforceability of provisional and conservatory measures under the New York Convention was also controversial, as commentators felt that an award ordering provisional measures lacked the degree of finality required by the Convention. In some countries, however, courts affirmed the enforceability of provisional measures ordered in a foreign arbitration procedure considering that an interim measure that is, in itself final (ie, not subject to appeal) meets the requirements for the exequatur.71 Of course, the Convention itself has not been amended, so it still does not offer a direct answer to this question, but there has been a visible trend towards a favourable interpretation in the last decades, which is also supported by subsequent work of UNCITRAL. Indeed, one of the amendments to the UNCITRAL Model Arbitration Law approved in 2006 was to expressly empower the arbitral tribunal to issue interim measures, including ex parte preliminary orders and to make these measures binding and enforceable by the competent

67 Art 2(3): ‘This Convention shall not apply to arbitration and related proceedings’. 68 Garcimartín and Saumier (n 39) para 78. 69 GB Born, International Commercial Arbitration, Vol II (Wolters Kluwer 2014) 2064 et seq. 70 ‘It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure’ (1985 Model Arbitration Law, Art 9). 71 eg, Seetransport Wiking Trader Schiffahrtsgesellschaft Mbh & Co, Kommanditgesellschaft, Plaintiff-appellee, v Navimpex Centrala Navala and Uzinexportimport, 989 F 2d 572 US Court of Appeals (2nd Cir 1993).

350  José Angelo Estrella Faria court, both domestically and internationally.72 The Model Arbitration Law also recognised the power of courts to issue interim measures in support of the arbitration proceedings.73 Therefore, even if the Model Arbitration Law does not expressly provide for the international enforcement of judicial decisions ordering provisional measures in support of arbitration proceedings (either measures issued originally by the court itself or by an arbitral tribunal and enforced by the court), it is implicit in the treatment of the matter by the Model Arbitration Law that, from a UNCITRAL perspective, the conduct of arbitral proceedings could benefit from the international recognition of court decisions that enforce interim orders of an arbitral tribunal or otherwise support the proceedings. However, this is only one aspect of the question. Certain types of interim measures available in some legal systems in support of arbitration proceedings, in particular anti-suit injunctions, may be controversial in other countries. This may become especially sensitive in connection with rules on international jurisdiction, as confirmed by the case law of the European Court of Justice in connection with the interpretation of the Brussels I Regulation.74 Following the 1960 Brussels Convention, arbitration was excluded from the scope of the Regulation so as not to interfere with the functioning of the New York Convention,75 but there was an extensive debate in Europe on the international enforceability of judicial decisions issued in connection with arbitral proceedings during the process leading to the adoption of the recast Brussels I Regulation. It was argued that recognising the jurisdiction of State courts for the same arbitration-related matters and enforcing the resulting decisions of foreign courts might in some instances support the orderly conduct of arbitration and avoid, for example, forum shopping and parallel proceedings. However, even the advocates of a more fluid delimitation that would have narrowed down the exclusion of arbitration from the scope of the Brussels I Regulation were conscious of the practical risks and technical difficulty of clearly delineating such a limited carve-out.76 72 ‘An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued’ (Model Arbitration Law, Art 17H, para 1). 73 ‘A court shall have the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the territory of this State, as it has in relation to proceedings in courts. The court shall exercise such power in accordance with its own procedures in consideration of the specific features of international arbitration’ (Model Arbitration Law, Art 17J). 74 The third judgment, West Tankers, arose out of damages claims in connection with a ship collision in Syracuse (Italy) of a vessel owned by West Tankers and chartered by Erg Petroli SpA (Erg). Erg claimed compensation from its insurers Allianz and Generali up to the limit of its insurance cover and commenced arbitration proceedings in London against West Tankers for the excess. West Tankers objected to the suit brought against it by the insurers before the Tribunale di Siracusa alleging lack of jurisdiction in the light of the arbitration agreement with Erg. In parallel, West Tankers sought a declaration of the High Court of Justice of England and Wales, that the dispute between itself and the insurers was to be settled by arbitration and sought an anti-suit injunction to restrain Allianz and Generali from pursuing any proceedings other than arbitration and order them to discontinue the proceedings commenced before the Tribunale di Siracusa. The Court granted the anti-suit injunction sought against Allianz and Generali, who appealed against that judgment to the House of Lords, which referred the question to the European Court of Justice (ECJ) of whether, under the Brussels I Regulation, a court of an EU Member State is barred from issuing an injunction to prevent proceedings in another Member State in breach of an arbitration agreement. The ECJ decided that was incompatible with Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement (European Court of Justice (Grand Chambers), 10 February 2009 Case No C-185/07, AllianzSpA and Generali Assicurazioni Generali SpAv West Tankers Inc). 75 See B Hess, T Pfeiffer and P Schlosser, ‘The Brussels I Regulation 44/2001 Application and Enforcement in the EU: The Heidelberg Report on the Application of Regulation Brussels I in 25 Member States’ (Study JLS/C4/2005/03) (CH Beck 2008) 31 ff. 76 H Van Houtte, ‘Why Not Include Arbitration in the Brussels Jurisdiction Regulation?’ (2005) 21 Arbitration International 509.

Relationship to Arbitration  351 While the European Commission initially favoured an intermediate approach,77 the preponderant view among scholars,78 which eventually prevailed at the European Parliament,79 favoured retaining a wide exclusion of arbitration in the final text.80 The Preamble of the Regulation explains that court rulings on matters relating to arbitration proceedings (eg, referring the parties to arbitration or deciding whether or not an arbitration agreement is null and void, inoperative or incapable of being performed) are not subject to the rules of recognition and enforcement laid down in the Regulation.81 Thus, there is no obligation to enforce them under the Regulation. However, this does not prevent a court from enforcing them under its own law. The negotiation process of the HCCH 2019 Judgments Convention, like the negotiation of the HCCH 2005 Choice of Court Convention, was obviously influenced by the review process of the Brussels I Regulation, and the Convention eventually adopted the same approach concerning the arbitration carve-out. Accordingly, the exclusion covers all types of court decisions relating to arbitration, including decisions giving assistance to the arbitral process.82 The exclusion also covers judgments declaring whether an arbitral award should be recognised or enforced, as well as judgments setting aside or annulling an arbitral award.

77 According to the European Commission’s original proposal, ‘a (partial) deletion of the exclusion of arbitration from the scope of the Regulation might improve the interface of the latter with court proceedings’. (Commission, ‘Green Paper on the Review of Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters’ COM (2009) 175 final (21 April 2009) 9); see also ‘Proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’ (COM (2010) 748 final). 78 For a summary of the debate, see M Moses, ‘Arbitration/Litigation Interface: The European Debate’ (2014) 35 Northwestern Journal of International Law & Business 1; L Hauberg Wilhelmsen, ‘The Recast Brussels I Regulation and Arbitration: Revisited or Revised?’ (2014) 30 Arbitration International 169. 79 ‘[W]hereas the various national procedural devices developed to protect arbitral jurisdiction (anti-suit injunctions so long as they are in conformity with free movement of persons and fundamental rights, declaration of validity of an arbitration clause, grant of damages for breach of an arbitration clause, the negative effect of the “Kompetenz-Kompetenz principle”, etc) must continue to be available and the effect of such procedures and the ensuing court decisions in the other Member States must be left to the law of those Member States as was the position prior to the judgment in Allianz and Generali Assicurazioni’ (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters European Parliament resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2009/2140(INI)) ([2011] OJ C 308E/36, recital M). 80 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ([2012] OJ L351/1). 81 ‘This Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts of a Member State, when seized of an action in a matter in respect of which the parties have entered into an arbitration agreement, from referring the parties to arbitration, from staying or dismissing the proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable of being performed, in accordance with their national law. A ruling given by a court of a Member State as to whether or not an arbitration agreement is null and void, inoperative or incapable of being performed should not be subject to the rules of recognition and enforcement laid down in this Regulation, regardless of whether the court decided on this as a principal issue or as an incidental question. On the other hand, where a court of a Member State, exercising jurisdiction under this Regulation or under national law, has determined that an arbitration agreement is null and void, inoperative or incapable of being performed, this should not preclude that court’s judgment on the substance of the matter from being recognised or, as the case may be, enforced in accordance with this Regulation. This should be without prejudice to the competence of the courts of the Member States to decide on the recognition and enforcement of arbitral awards in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (“the 1958 New York Convention”), which takes precedence over this Regulation. This Regulation should not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award’ (ibid, recital 12). 82 eg, decisions ‘declaring whether the arbitration clause is valid, inoperative or incapable of being performed; ordering parties to proceed to arbitration or to discontinue arbitration proceedings; appointing or dismissing arbitrators; fixing the place of arbitration; or extending the time-limit for making awards’ (Garcimartín and Saumier (n 39) para 78).

352  José Angelo Estrella Faria The last point deserves some additional comments. Ever since the famous Hilmarton83 and Chromalloy84 cases there has been a heated debate about the international effects of court judgments setting aside an arbitral award. The final text of the New York Convention does not preclude a court in a Contracting State from recognising or enforcing such an award, if it can be recognised or enforced pursuant to that State’s domestic law or another treaty to which it is party. In application of the more-favourable-right provision under Article VII(1),85 courts in certain Contracting States have consistently enforced awards that have been set aside or suspended. In doing so, the courts have stressed the international nature of the arbitration and the fact that the arbitrator is not part of the national legal order of the country where the award was rendered.86 They have also considered whether the grounds for setting aside the award in the country of origin would have been acceptable grounds for annulment under their own laws; if that was not the case, they found themselves bound to enforce the award under Article VII(1) of the New York Convention. Conversely, the New York Convention does not require courts in the Contracting States to recognise an award that has been set aside or suspended and they will not violate that convention by refusing to do so.87 Courts in Germany88 and the United States,89 for instance, have decided that the enforcement of an award should be refused if it has been set aside in the country where it was rendered. This is a question with significant practical implications for cases where the parties have offices or assets in different jurisdictions, but also more generally for all cases where a party may seek to enforce the award in a place other than the seat of the arbitration. There can be no doubt that conflicting approaches on the enforceability of an award set aside in the country of origin are a cause of legal uncertainty and undermine the uniform application of the New York Convention. Also, these diverging positions may stimulate parallel proceedings and conflicts of jurisdiction. Thus, at least in theory, a uniform rule on the international enforceability (or non-enforceability) of a judgment setting aside an arbitral award could have contributed to enhancing predictability and uniformity, which could have been regarded as a legitimate objective within the scope of

83 Société Hilmarton c/ Société OTV, Cour de cassation, Chambre civile 1, du 23 mars 1994, 92-15.137, Bulletin 1994 I No 104, 79. In this case, the Court of Cassation enforced an award rendered in Switzerland despite the fact that it had been set aside by the Swiss Federal Supreme Court and a new arbitral tribunal had been constituted to hear the dispute. The Court reasoned that ‘the award rendered in Switzerland is an international award which is not integrated in the legal system of that State, so that it remains in existence even if set aside and its recognition in France is not contrary to public policy’. French courts have followed this reasoning in a series of subsequent cases (see the references in UNCITRAL Secretariat, Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (United Nations 2016) 302–03, paras 43 and 44). 84 Chromalloy Aeroservices v Arab Republic, 939 F Supp 907 US District Court for the District of Columbia (1996). 85 ‘The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon’. 86 Since the early 1980s commentators have used the term ‘delocalised’ to refer to arbitration proceedings (and the resulting award) considered to be detached from the seat of arbitration and its legal system (see J Paulsson, ‘Arbitration Unbound: Award Detached from the Law of its Country of Origin’ (1981) 30 International & Comparative Law Quarterly 358). 87 1958 New York Convention (see Art V (1)(e)). 88 Oberlandesgericht [OLG] Rostock, Germany, 1 Sch 03/99, 28 October 1999; Bundesgerichtshof, Germany, III ZB 14/07, 21 May 2007. 89 Baker Marine Ltd v Chevron Ltd, 191 F 3d 194 US Court of Appeal (2nd Cir 1999); TermoRio SA ESP v Electrificadora del Atlantico SA ESP, 421 F Supp 2d 87 US District Court, District of Columbia (2006); Martin Spier v Calzaturificio Tecnica, SpA, 86 Civ 3447 US District Court, Southern District of New York (1999).

Relationship to Arbitration  353 the HCCH 2019 Judgments Convention. The difficulty, however, is that there is no consensus as to which solution is the correct one, and there are strong arguments for both positions: making the annulment judgment internationally enforceable ensures cross-border legal certainty; at the same time, this could open the door to obliging courts to enforce decisions contrary to the letter or the spirit of the New York Convention or to give effect to parochial notions of public policy or arbitrability, or other reasons for setting aside an award in disaccord with international practice. On balance, therefore, it was a wise decision of the drafters of the HCCH 2019 Judgments Convention to simply exclude entirely all arbitration and related proceedings. One last aspect that underscores the care taken by the drafters to ensure the compatibility of and avoid future conflicts between the HCCH 2019 Judgments Convention and the international framework for alternative dispute resolution concerns the treatment of settlement agreements. The exclusion of arbitration under Article 2(3) of the HCCH 2019 Judgments Convention, does not cover other forms of alternative dispute resolution (eg, conciliation or mediation).90 The Convention does not apply to the recognition and enforcement of settlements reached in the course of conciliation or mediation because they would not qualify as ‘judgments’ within the meaning of Article 3(1)(b), which defines ‘judgments’ as ‘decisions on the merits given by a court’.91 Settlement agreements are however enforceable under the terms of Article 11, which extends the recognition and enforcement regime of the Convention to ‘judicial settlements (transactions judiciaires) approved by a ‘court of a Contracting State … or which have been concluded in the course of proceedings before a court of a Contracting State’, provided that they are enforced under the Convention in the same manner as a judgment if they are so enforceable in the State of origin.92 This provision is mirrored in Article 1, paragraph 3 of the Singapore Convention on Mediation by the exclusion from its scope of application of any settlement agreements that would qualify for enforcement under the HCCH 2019 Judgments Convention as ‘judicial settlements’.93 Thus, court-approved settlements that are enforceable as court judgments are enforceable under the HCCH 2019 Judgments Convention, whereas out-of-court settlements or judicial settlements otherwise not enforceable in the Contracting States of the Judgments Convention are enforceable under the Singapore Convention on Mediation. States that ratify both the Singapore Convention on Mediation and the HCCH 2019 Judgments Convention will therefore have a comprehensive and complementary regime for the recognition and enforcement of settlement agreements under either Convention. As most countries are already parties to the New York Convention, ratification of the HCCH 2019 Judgments Convention will provide them with a basis for the recognition and enforcement of both arbitral and judicial decisions in a manner that avoids unnecessary overlap and conflict between arbitration and judicial decisions relating to arbitral proceedings. The potential advantage for businesses and practitioners in terms of increased options for dispute settlement, largely outweighs the absence of a uniform solution for some practical problems that arise in that regard.

90 ‘This Convention shall not apply to arbitration and related proceedings’. 91 See generally, Ning Zhao, ch 2, section II, in this volume. 92 HCCH 2019 Judgments Convention (see Art 11). 93 ‘This Convention does not apply to: (a) Settlement agreements: (i) That have been approved by a court or concluded in the course of proceedings before a court; and (ii) That are enforceable as a judgment in the State of that court; (b) Settlement agreements that have been recorded and are enforceable as an arbitral award’.

354  José Angelo Estrella Faria

VI. Conclusions Harmonising laws is an incremental, slow-moving process. Radical, sudden change is seldom of greater value than the ongoing evolution of the law in pace with the actual demands of market reality. Culminating a long negotiation process, the final text of the HCCH 2019 Judgments Convention is a remarkable achievement. The Convention has set out to balance common standards in a delicate area and will thereby open up interesting new options for parties and practitioners who, for various reasons, still prefer courts over arbitration, for those whose disputes are not capable of being settled by arbitration, or those who would feel more at ease voluntarily subjecting to court jurisdiction, but still use arbitration because of the enforcement factor. The complementary nature of the Judgments Convention, which gives hope for a harmonious interplay with the current framework for commercial arbitration, is also the result of the different pace and degree of international harmonisation in those two areas, as well as of developments in legal practice and industry preferences. Both suggest that, at least in the near future, court proceedings are not likely to replace arbitration as the preferred method for the settlement of international commercial disputes. Nevertheless, practitioners and businesses alike stand to benefit from the wider scope for exercising party autonomy in dispute settlement. The Convention may itself have a positive reverse impact on domestic standards of civil procedure, which would also have a positive impact on the business environment in State Parties to the Convention.

17 General Synthesis and Future Perspectives HANS VAN LOON*

I.  General Synthesis A. Introduction The preceding chapters offer a rich variety of insights into the genesis, scope, structure and intended practical operation of the HCCH 2019 Judgments Convention, its relationship with the HCCH 2005 Choice of Court Convention and with international commercial arbitration, as well as potential challenges and benefits of the Convention from the perspective of many parts of the world: ASEAN, China, the Arab countries, Africa, South-East Europe, the European Union (EU), the United States, Canada and Latin America. All the contributions show a keen interest in the Convention, and the fact that the various regional comments all take a positive attitude towards the Treaty bodes well for its chances as a basic global instrument for the circulation of judgments. The fact that the EU and Ukraine both joined the Convention on 29 August 2022, which will lead to its entry into force on 1 September 2023, reinforces this positive outlook. That said, the contributions also make it clear that much work, including promotion, explanation and support will be needed to convince and enable a significant number of jurisdictions to join the Convention. In more than a few countries, its implementation may well be a laborious process. And beyond the stage of embracing the Convention lies the further challenge of ensuring its uniform and effective application in a rapidly changing world. A number of themes emerge from the discussion and assessment of the Convention by the contributors: The Current Situation regarding Recognition and Enforcement of Judgments in Different Parts of the World (section I.B); the Definitions (section I.C); the Exclusions from Scope (section I.D); often related to: The Convention’s Relationship with Other International Instruments (section I.E); The Jurisdictional Filters or Indirect Bases of Jurisdiction (section I.F); The Grounds for Refusal (section I.G); and the Bilateralisation option (section I.H)

* Member of the Institut de Droit International. Former Secretary General of the Hague Conference on Private International Law (1996–2013).

356  Hans van Loon

B.  Current Situation in Different Parts of the World The various contributions vividly illustrate the current diversity of legal systems regarding the recognition and enforcement of foreign judgments.1

i.  No Specific Rules on ‘Recognition’ The Convention creates a uniform set of ‘core rules’ on both recognition and enforcement of foreign judgments.2 In contrast, ‘recognition’ of a foreign judgment as distinct from its ‘­enforcement’ is not acknowledged in some jurisdictions. As noted by Béligh Elbalti (chapter nine), with the exception of Lebanon, Tunisia and perhaps Egypt, Middle Eastern and North African Arab countries generally demand an exequatur decision before giving effect to a foreign decision.

ii.  Differing Attitudes towards Recognition and Enforcement Jurisdictions of the common law tradition generally recognise and enforce foreign decisions, at least monetary judgments. A number of these countries in the ASEAN region (Brunei, Malaysia, Myanmar, Singapore) and in Africa (eg, Nigeria, Ghana and the mixed jurisdiction of South Africa) continue to follow in their statutes the scheme of the 1933 UK Foreign Judgments (Reciprocal Enforcement) Act, or even the 1920 Administration of Justice Act. These statutes provide for registration of judgments emanating from countries designated therein which gives them the same effect as a judgment obtained in the registering court (Adeline Chong (chapter twelve); Abubakri Yekini and Chukwuma Okoli (chapter thirteen)). Judgments from other countries can still be enforced under common law. At common law such judgments create a legal obligation allowing the judgment creditor to file a fresh action to enforce this obligation, together with an application for summary judgment with a certified copy of the foreign judgment. This may be a quick way of getting a judgment, but it remains ‘open to litigation tactics that can frustrate a judgment creditor’ (Yekini and Okoli). As Geneviève Saumier and Linda Silberman (chapter eight) explain, the United States and Canada have a tradition of generously giving effect to foreign judgments, while facing obstacles regarding the recognition and enforcement of US and Canadian judgments abroad. This last aspect in particular makes the Convention attractive to these States. By contrast, many civil law countries have more reserved attitudes towards foreign judgments. Adeline Chong points out that the civil law countries of ASEAN – Cambodia, Indonesia, Lao PDR, Thailand, Vietnam – ‘display varying degrees of receptiveness to the recognition and enforcement of foreign judgments’. Among them, ‘Vietnam’s laws on foreign judgments are the most advanced’, while, at the other extreme, ‘the general position under Indonesian and Thai laws is that foreign judgments are not entitled to enforcement’. According to Zheng Tang (chapter fourteen), ‘Chinese law only permits recognition and enforcement of foreign civil and commercial judgments on two conditions: by treaty obligations and by reciprocity’. Given the limited number of such treaties, the reciprocity requirement remains crucial from a Chinese perspective. 1 For a continually updated country-by-country summary of recognition and enforcement requirements, see L Garb and JDM Lew, Enforcement of Foreign Judgments (Kluwer Law International 2016). 2 F Garcimartín and G Saumier, Explanatory Report on the 2019 HCCH Judgments Convention (HCCH 2020) paras 111–17. But note that the Convention only provides for the enforcement, not for the recognition, of judicial settlements (Art 11), see below, section II.C.i.a and II.C.ii.b).

General Synthesis and Future Perspectives  357 The Arab countries all have laws on foreign judgments, which generally require an exequatur. However, as Elbalti explains, despite their similarity they display important differences. As Yekini and Okoli point out, African civil law countries under their codes of civil procedure also generally require an exequatur, which may depend on evidence of reciprocal enforcement of judgments by the State of origin of the judgment. Southeast European countries have detailed but varying rules on foreign judgments. As Ilija Rumenov (chapter ten) points out, some (Serbia, Kosovo, Bosnia Herzegovina) still adhere to the 1982 Yugoslav Law on Conflict of Laws, requiring reciprocity, while others (Albania, Montenegro, North Macedonia and Turkey) have reformed their laws (except for Turkey).

iii.  Reciprocity Often Required As the foregoing suggests, ‘reciprocity’ as a condition for the recognition and enforcement of foreign judgments remains widespread. By contrast, in Canada reciprocity was never a condition for recognition and enforcement. In the United States, where recognition and enforcement of foreign judgments is primarily a matter of state law, some state laws do require reciprocity (Saumier and Silberman). Where reciprocity is required, it can appear in many different shades, from very strict (requiring proof that the forum’s judgments have been actually enforced in the other jurisdiction, or that at least its law allows such enforcement) to more relaxed, including ‘presumptive reciprocity’, where the requested court will presume such a reciprocal relationship in the absence of a precedent of refused recognition or enforcement in the other jurisdiction for lack of reciprocity. ‘Presumptive reciprocity’ is proposed by the ‘Nanning Statement’, adopted by the second China–ASEAN Justice Forum in 2017, which, although non-binding, may have some impact in some ASEAN countries (Chong) and China (Tang). In the Arab region where, except for Algeria and Morocco, reciprocity is also generally required, it likewise varies from strict to more relaxed (Elbalti).

iv.  No Effect Given to Non-Monetary Judgments Like the HCCH 2005 Choice of Court Convention, the HCCH 2019 Judgments Convention covers both monetary and non-monetary judgments such as those ordering specific performance or injunctions. Paul Beaumont (chapter six) stresses the practical importance of this inclusion as ‘an increasing proportion of wealth is represented by intangible property that can only be effectively protected by such relief ’. Recognition and enforcement of non-monetary judgments is generally not admitted under common law, as this is seen as ‘equitable relief ’ and thereby subject to the court’s discretion. As Chong points out, non-monetary judgments are not enforced in Brunei and Malaysia; Singapore being an exception. Elbalti explains that Arab laws do not differentiate between foreign monetary and non-monetary judgments for the purpose of enforcement, with the notable exception of Iraqi law, which excludes enforcement of non-monetary judgments. Saumier and Silberman cite the landmark judgment of the Canadian Supreme Court which reversed the previous view that non-monetary judgments could not be enforced in Canada.3 In the United States, although the Uniform Foreign Money Judgments Recognition Acts 1962 and 2005 extend



3 Pro

Swing Inc v Elta Golf Inc, 2006 SCC 52.

358  Hans van Loon only to claims for money damages, ‘the principles of the Acts and the law in most states extend recognition and enforcement to a broader set of judgments’ on the basis of comity, and this is now also reflected in the Fourth Restatement of Foreign Relations Law, which extends recognition to foreign judgments ‘determining a legal controversy’.

v.  Required Connections to the State of Origin The Explanatory Report speaks of ‘three traditional categories of connections to the State of origin’ which are considered sufficient for a foreign judgment to be recognised and enforced: ‘connections between the State of origin and the defendant, connections established by consent, and connections between the claim and the State of origin’.4 The various contributions show, however, that not all legal systems apply a jurisdictional criterion, and when they do, they do not necessarily regard all three categories as sufficient or of equal weight. First, certain countries do not apply the jurisdictional filters test. An example, noted by Chong, is the Philippines. This country ‘does not seem to apply any test of indirect jurisdiction to foreign judgments … a foreign decision that is final and conclusive is simply presumed by the Philippine court to be valid and binding on a defendant in the absence of proof of the contrary’.5 Elbalti notes (and criticises) the example of Tunisia: no review of the jurisdiction of the original court, except where Tunisian courts claim exclusive jurisdiction. Other Arab countries do apply a jurisdictional filter but differ regarding their requirements for indirect jurisdiction of the foreign court. Turning to Latin America, [i]n Brazilian legislation a very open system for the recognition of foreign judgments prevails … The Superior Court of Justice … the only court having jurisdiction to grant recognition to foreign judgments, does not engage in any analysis of how reasonable the links between the foreign jurisdiction and the case under review were.6

Second, common law countries generally do not view the connection between the State of origin and the claim as sufficient in the absence of a territorial link with the defendant or the defendant’s consent. This is true for the ASEAN common law countries as well as for the civil law country Vietnam (Chong) and for the United States (Saumier and Silberman). Third, some legal systems see the link between the country of origin and the defendant as a matter of due process, and even as a constitutional requirement, and therefore do not as a matter of principle recognise or enforce foreign judgments not based on such a link (or the defendant’s consent).7 ‘In the United States, it has been thought that the bases for indirect jurisdiction in the recognition and enforcement context – which take the form of “eligibility” filters in the Convention – must satisfy the same constitutional due process standards as direct jurisdiction’ (Saumier and Silberman – but see also their comment in relation to Article 5, below, section I.F). The view that due process requires a link between the State of origin and the defendant explains why in the Convention the connection between that State and the claim does not appear

4 Garcimartín and Saumier (n 2) para 138. 5 See A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Hart Publishing 2019) 318–19, with critical comment in fn 45. 6 N de Araujo and M de Nardi, ‘Consumer Protection Under the HCCH 2019 Judgments Convention’ (2020) 67 Netherlands International Law Review 67. 7 This also explains why it was not possible to establish uniform direct jurisdiction bases in the 2007 Hague Convention on the International Recovery of Maintenance Obligations.

General Synthesis and Future Perspectives  359 as a self-standing jurisdictional filter but is accompanied by safeguards to ensure a link with the defendant. This applies notably to the jurisdictional filter regarding judgments on contractual obligations, which requires ‘a purposeful and substantial connection’ to the State of origin (Article 5(1)(g)). The same goes for non-contractual obligations: Article 5(1)(j) demands that ‘the act or omission directly causing [the] harm occurred in the State of origin, irrespective of where that harm occurred’, thus excluding courts in the State of the harm (see also below, section II.C.i b)).

C. Definitions i.  No Definition of ‘Courts’ As Wolfgang Hau (chapter two) notes (and regrets), the Convention does not provide a full definition of the notion of ‘court’, mentioned in Article 3(1)(b). Commenting on the Explanatory Report’s viewpoint that this notion should be interpreted autonomously, with which he agrees, he nevertheless points out that it is for the State of origin ‘to define which bodies exercise judicial or quasi-judicial functions within its legal system’. Thus, he argues, administrative authorities may qualify as ‘courts’ if the State confers judicial powers upon them to rule on matters covered by the Convention, and the same goes for State ADR institutions with judicial powers. This suggests a slightly broader understanding of the autonomous concept of ‘court’ than that of the Explanatory Report, but seems correct.

ii. Judgments The Convention defines judgments as any decision on the merits, and, despite their practical importance for international business,8 excludes interim measures of protection. As a result, decisions on procedural or enforcement matters, final or provisional, including freezing orders and anti-suit injunctions are excluded (Hau). As the Explanatory Report points out, decisions on the merits include default judgments (subject to Articles 7(1) and 12(1)(b)), and judgments in collective actions. The latter inclusion is of growing importance, given the rise of collective lawsuits and of legislation on such actions (see also below, section II.C.i.a and II.C.ii.b)). This also applies to judgments ordering the defendant to provide information or to produce a document. As procedural matters, however, they are excluded, except, as Hau argues, where they are rendered in an independent action. In contrast with the Convention, the Brussels Ia Regulation (as well as the ASADIP 2016 Principles of Transnational Access to Justice (Chapter 8), the ALI/UNIDROIT 2006 Principles of Transnational Civil Procedure and the 1996 Helsinki International Law Association Principles on Provisional and Protective Measures in International Litigation) provide for the enforceability of interim measures of protection.9 On the other hand, as noted by Saumier and Silberman, interim measures are not generally enforceable as a matter of law in the United States or Canada. While regretting the exclusion of interim measures by the Convention, Hau considers this

8 See C Kessedjian, ‘Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?’ (2020) 1 Nederlands Internationaal Privaatrecht 19, 23. 9 It is also noteworthy that, as Jose Angelo Estrella Faria points out, in 2006 a chapter IV A on interim measures was added to the UNCITRAL Model Law on International Commercial Arbitration.

360  Hans van Loon ‘understandable’, in view of the problems to which their inclusion in the Brussels Ia Regulation has given rise. He points out that the party seeking interim measures in another State, including the State (to be) addressed for the recognition and enforcement of the judgment, remains free to request such measures from the courts of that other State under its laws.10 The Convention includes both monetary and non-monetary judgments (above section I.B.iv). Non-monetary judgments are often enforced by compulsory measures, typically pecuniary penalties, to encourage the defendant to comply with the judgment. The Convention does not clarify whether such pecuniary penalties are ‘judgments’. Garcimartín’s analysis of the question leads him ‘tentatively’ to the conclusion that this silence should be interpreted as meaning that they are not included in the Convention. As he points out, the situation is different under the Brussels Ia Regulation which does provide a definition of pecuniary payments.11 The Brussels Ia precedent prompts Hau to suggest that the Convention should apply to such payments only where national law provides that the court (of origin) has determined the final amount of the penalty and where it is payable to the judgment creditor (and not to the State).

iii. Finality/res judicata The Convention dispenses with a definition of the ‘finality’ of a judgment and is silent on the debated question whether the scope of its res judicata effect is determined by the law of the State of origin or that of the requested State.12 Instead, it provides practical rules in its Article 4(3) and 4(4). Chong considers that this Article can ‘work in tandem to accommodate the different conceptions of ‘finality’ and approaches in relation to judgments [subject to appeal in the State of origin] adopted by the ASEAN Member States … Overall, it is difficult to envisage any of the ASEAN Member States objecting to the operation of Article 4(3) and 4(4)’. Elbalti points out that Arab States use different terminologies for the finality of a judgment although they are ‘commonly understood to mean that the foreign judgment is no longer subject to an ordinary appeal’, but also notes the exception of Lebanon where non-final judgments may be enforced. According to Saumier and Silberman, US courts ‘tend to interpret finality, conclusiveness and enforceability based on the laws of the foreign jurisdiction where the judgment was rendered’, concluding that ‘the Convention provision in Article 4(3) is to the same effect’.

iv.  Habitual Residence The Convention applies ‘habitual residence’ as the criterion for the link between both a natural and a legal person and their State, but only defines it for legal persons. Contrary to the practice of some countries, a person’s simple presence in the State of origin is not a sufficient connection for the purposes of the Convention.13 Rumenov notes that in respect of natural persons, this

10 As the 2005 Choice of Court Convention, Art 7, second sentence, not replicated in the HCCH 2019 Judgments Convention, recalls. Under Art 40 Brussels Ia Regulation an enforceable judgment carries with it by operation of law the power to proceed to any protective measures which exist under the law of the EU Member State addressed. 11 F Garcimartin, ‘The Judgments Convention: Some Open Questions’ (2020) 67 Netherlands International Law Review 19, 21–25. 12 ibid, 25–28. See also, for a detailed discussion of res judicata, Paul Beaumont, ch 6 in this volume. 13 See the discussion by PN Okoli of the South African Court of Appeal case of Richman v Ben-Tovim 2007 (2) SA 203, where the respondent did not dispute the debt but argued that his mere presence in England was an insufficient basis for the English court to exercise jurisdiction. The Court, however, considered that a ‘realistic approach’ was necessary and enforced the foreign judgment: conflictoflaws.net/2020/promoting-foreign-judgments-lessons-in-legal-convergencefrom-south-africa-and-nigeria-kluwer-law-international-b-v-2019-3/.

General Synthesis and Future Perspectives  361 introduces a novelty for several South-East European countries which presently use a variety of criteria, but does not see this as an obstacle. Indeed, the conundrum of determining jurisdiction in the case of migrants (on the basis of formal or factual criteria?) which presently exists in some of those legal systems will no longer arise where the Convention applies. Significantly, none of the authors object to the Convention’s broad fourfold definition of the habitual residence of legal persons (Article 3(2)), although for some jurisdictions this might mean broadening their definition of indirect jurisdiction over such entities.

D.  Exclusions from Scope i.  Articles 2, 8, 1814 None of the contributors raise major objections to the broad exclusions from the Convention’s substantive scope (Article 2, with reflex effect on Article 8) discussed by Xandra Kramer (chapter one). She explains in particular the extent and background of the exclusions of defamation, privacy, intellectual property (IP) and the partially anti-trust or competition matters. Regarding the exclusion of IP, as the Explanatory Report admits, issues may arise in practice regarding the extent to which it applies to contractual IP obligations, including where an IP issue appears as a preliminary question in the foreign judgment (Article 8). Elbalti simply notes ‘some difficulty when it comes to delimitation and categorisation’ which may arise as Arab legislation and conventions have a wider scope of application. Silberman and Saumier comment that the fact that existing law in the United States and Canada would extend to judgments in some of the areas excluded from the Convention’s scope ‘does not present a problem for either country, given that Article 15 would continue to permit this broader recognition under national law’. On the other hand, under US law, the SPEECH Act mandatorily forbids the recognition or enforcement of a foreign judgment based on a claim of defamation. Andreas Stein and Lenka Vysoka (chapter seven) point out that the Convention does not give the same broad range of protection to consumers and employees as the Brussels Ia Regulation and does not make special provision for the weaker party in insurance matters. Nevertheless, the EU concluded that the Convention’s limited protection to employees and consumers suffices, even in respect of weaker insurance parties, and that, therefore, no declaration was needed under Article 18.15 By contrast, upon its accession, the EU made a declaration under Article 18 to cater for the fact that, contrary to the Brussels Ia Regulation, the Convention does not not afford exclusive jurisdiction to the State where immovable property is located regarding commercial (non-residential) tenancies of such property.16 14 See also, A Bonomi and C Mariottini, ‘A Game-Changer in International Litigation? Roadmap to the 2019 Hague Judgments Convention’ (2018/19) 20 Yearbook of Private International Law 537–67; F Pocar, ‘The 2019 Hague Judgments Convention: A Step into the Future or a Restatement of the Present?’ in J Harris and C McLachlan (eds), Essays in International Litigation for Lord Collins (Oxford University Press 2022). 15 They also note that according to stakeholders interviewed in the EU, the Convention ‘is considered mostly as a B2B instrument with only limited application to consumer and employment matters’. 16 Declaration made by the EU on 29 August 2022: ‘The European Union declares, in accordance with Article 27(1) of the Convention, that it exercises competence over all the matters governed by this Convention. Its Member States will not sign, ratify, accept or approve the Convention, but shall be bound by the Convention by virtue of the accession of the European Union. For the purposes of this declaration, the term “European Union” does not include the Kingdom of Denmark by virtue of Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union. The European Union declares, in accordance with Article 18 of the Convention, that it will not apply the Convention to non-residential leases (tenancies) of immovable property situated in the European Union’. Ukraine did not deposit any declaration upon its ratification of the Convention.

362  Hans van Loon Tang discusses the possible need for a declaration under Article 18 by China in light of its current claim of exclusive jurisdiction over Sino–foreign joint venture contracts, cooperative contracts and cooperative exploration of natural resources contracts performed in China. She suggests that when ratifying the Convention, China might not simply invoke Article 18 to continue this claim but could also relax this exclusivity. This would enable its courts to recognise and enforce judgments concerning such contracts rendered by other States Parties’ courts, for example, based on the parties’ choice of court17 or the defendant’s consent.

ii.  Arbitration, Article 2(3) ‘The Convention shall not apply to arbitration and related proceedings’ (Article 2(3)). Jose Angelo Estrella Faria (chapter sixteen) considers that the Convention might legitimately have created a ‘uniform rule on the international enforceability (or non-enforceability) of a judgment [rendered by the court of the seat of the arbitration] setting aside an arbitral award’, because this could have avoided parallel proceedings and conflicts of jurisdiction. However, since this remains a controversial issue, and the drafters of the Brussels Ia Regulation also refrained from including such a rule, he concludes that ‘[o]n balance … it was a wise decision … to simply exclude entirely all arbitration and related proceedings’. While the exclusion of Article 2(3) applies to settlements that are enforceable as an arbitral award, settlement agreements approved by a court or concluded in the course of judicial proceedings are enforceable under the terms of Article 11. As Estrella Faria points out, this provision is mirrored in Article 1(3) of the United Nations Convention on International Settlement Agreements Resulting from Mediation18 (Singapore Convention on Mediation – see also below, section I.E.ii) by the exclusion of any settlement agreements that would qualify for enforcement under the HCCH 2019 Judgments Convention as ‘judicial settlement’.

E.  The Convention’s Relationship with Other International Instruments Although from a formal treaty law perspective the Convention is a self-standing multilateral treaty, functionally it should be seen in the broader context of a range of other multilateral treaties, which may also be relevant to its implementation and interpretation. This applies, first and foremost, to the HCCH 2005 Choice of Court Convention, on which it builds.

i.  The HCCH 2005 Choice of Court Convention The HCCH 2019 Judgments Convention states in its Preamble that it ‘is complimentary to the Convention of 30 June 2005 on Choice of Court Agreements’. The jurisdictional filter of Article 5(1)(m) of the HCCH 2019 Judgments Convention applies only to non-exclusive choice of court agreements, leaving exclusive agreements to be dealt with under the HCCH 2005 Convention.

17 China has already signed the 2005 Hague Choice of Court Convention (without filing concomitant declarations). When ratifying that instrument, China may face the same choice under its Art 21, which parallels Art 18 of the HCCH 2019 Judgments Convention. 18 General Assembly Resolution 73/198, adopted on 20 December 2018, Annex (reproduced in UNCITRAL Yearbook, XXXIII: 2002, Part Three).

General Synthesis and Future Perspectives  363 Beaumont’s contribution explains in detail how the two Conventions complement each other. For some issues that may arise under both Conventions, the HCCH 2005 Convention provides solutions that are not found in the HCCH 2019 Judgments Convention. Examples include the important ‘deeming’ provision,19 the severability provision,20 the rule that the court addressed should apply the law of the State of the chosen court (including its private international law rules) to determine the substantive validity of the choice of court agreement (and not its own private international law rules), and is bound by any ruling of the chosen court on the substantive validity of this agreement.21 Beaumont suggests that the ‘uniform features of the 2005 Convention that are not already incorporated into the 2019 Convention should be regarded as best practice for implementing and interpreting the latter Convention’.22 On the other hand, the HCCH 2019 Judgments Convention may occasionally shed light on the interpretation of the HCCH 2005 Convention, for example, where the Explanatory Report, stating that Article 11 of the HCCH 2019 Judgments Convention extends to out of court agreements subsequently approved by a court, suggests that the same interpretation should apply to the identical worded Article 12 of the HCCH 2005 Convention,23 or advocates a broader interpretation of Article 18 than the parallel rule of Article 21 of the HCCH 2005 Convention.24 Moreover, as also noted by Saumier and Silberman, if States are bound by both instruments, the HCCH 2019 Judgments Convention reinforces the HCCH 2005 Convention in one important respect. If the parties have concluded an exclusive choice of court agreement designating a court of a Contracting State to the HCCH 2005 Convention, the HCCH 2019 Judgments Convention permits the refusal of recognition and enforcement of a judgment from a non-chosen court when the proceedings in that court were ‘contrary’ to that agreement.25 This applies even though an indirect basis for the jurisdiction of that court existed under the HCCH 2019 Judgments Convention (Article 5). By contrast, the HCCH 2005 Convention would permit the requested court to give priority to the (earlier) judgment of the non-chosen court.26 Beaumont suggests that the requested court should follow this line to uphold the policy of the HCCH 2005 Convention and, under the HCCH 2019 Judgments Convention  – though as Hau recalls it ‘only deals with the recognition of foreign judgments, not with the recognition of pendency in another forum’ – should also refuse to recognise and enforce a judgment given by a non-chosen court where proceedings are still pending in the exclusively chosen court.27

19 HCCH 2005 Choice of Court Convention, Art 3(b). 20 ibid, Art 3(d). 21 ibid, Art 9(a). 22 See, however, Garcimartín and Saumier (n 2) para 269, stating that in the case of Article 7(1)d of the HCCH 2019 Judgments Convention, ‘[t] the validity … of the agreement … is governed by the law of the requested State, including its private international law rules’. 23 ibid, para 296. 24 ibid, para 337, fn 243. 25 Art 7(1)d. Note that this rule also applies in the case of a non-exclusive choice of court agreement and regardless of whether the chosen court was that of a Contracting State or a third State. 26 HCCH 2005 Choice of Court Convention, Art 9(f). 27 Unless, of course, as noted by Beaumont and Goddard, ‘the party now relying on the derogative effect of the choice of court agreement expressly consented, or entered an appearance but did not object timeously, to the jurisdiction of the courts of the State of origin’. D Goddard and P Beaumont, ‘Recognition and Enforcement of Judgments in Civil or Commercial Matters’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022) 414.

364  Hans van Loon

ii.  Other International Instruments Just as Article 5(1)(m) of the HCCH 2019 Judgments Convention ensures its compatibility with the HCCH 2005 Choice of Court Convention, several of the exclusions under Article 2(1), as well as the exclusion of arbitration (above, section I.D.ii), avoid its incompatibility with other treaties. Conversely, other treaties may take care not to conflict with the HCCH 2019 Judgments Convention, as illustrated by the exclusion by the UNCITRAL 2018 (Singapore) Convention on Mediation of settlement agreements that would qualify for enforcement under Article 11 of the HCCH 2019 Judgments Convention as ‘judicial settlements’.28 The Convention in its Article 23 provides a set of general rules for its relationship with other international instruments. As far as possible, it should be interpreted to be compatible with other treaties (Article 23(1)). If they are not compatible, then, as Kramer points out, three different situations arise. First, the Convention gives way to the other instrument if that was concluded before the Convention, even if only the requested State is a Party to that treaty and even if that treaty was ratified by, or entered into force for, the requested State after the Convention (Article 23(2)). Article 23(2) also ensures that earlier concluded regional instruments such as the conventions in the Arab region mentioned by Elbalti – which are generally less liberal than the Convention – and, in Latin America, the 1889 and 1940 Montevideo Treaties on International Procedural Law, the Inter-American Conventions of Montevideo 1979 and La Paz 1984 and the Mercosur Protocols of Las Leñas 1992 and Buenos Aires 1994, referred to by Marcos Dotta Salgueiro (chapter four) and Verónica Ruiz Abou-Nigm (chapter eleven)29 are respected. Second, if such an incompatible instrument was concluded after the Convention, then that later instrument prevails over the HCCH 2019 Judgments Convention and governs the granting or refusing of recognition and enforcement, subject to Article 6 (Article 23(3)). One could think here of the conclusion after the HCCH 2019 Judgments Convention of a global instrument in a specialised area within the Convention’s substantive scope or of a regional instrument aimed at further increasing the efficient recognition and enforcement of judgments. Finally, the specific case of the circulation of judgments under EU instruments, whether concluded before or – always subject to Article 6 – after the Convention, is preserved by Article 23(4).

F.  The Jurisdictional Filters or Indirect Bases of Jurisdiction The purpose, layout and operation, and various categories of the indirect bases of jurisdiction listed in Articles 5 and 6 are set out extensively and in detail by Pietro Franzina (chapter three). Several other contributions to the volume also comment on these core Articles of the Convention.

28 ‘This Convention does not apply to: (a) Settlement agreements: (i) That have been approved by a court or concluded in the course of proceedings before a court; and (ii) That are enforceable as a judgment in the State of that court; (b) Settlement agreements that have been recorded and are enforceable as an arbitral award’. See also, the comments by Wolfgang Hau on judicial settlements in ch 2 in this volume. 29 See also, MB Noodt Taquela, and V Ruiz Abou-Nigm, ‘The Draft Judgments Convention and its Relationship with other International Instruments’ (2017/18) 19 Yearbook of Private International Law 449.

General Synthesis and Future Perspectives  365

i.  Article 5 The jurisdictions covered in this volume vary in respect of the connection between the foreign judgment and the State of origin required for its recognition and enforcement (see above, section I.B.v). Yet, with the possible exception of Elbalti, none of the contributions expects grave objections to the bases for recognition and enforcement of judgments required by Article 5. Chong notes that the jurisdictional filters in Article 5(1) are more extensive than those found under the national laws of the ASEAN Member States. However, for the common law ASEAN countries, the Commonwealth Model Law on the Recognition and Enforcement of Foreign Judgments,30 by its inclusion of non-traditional bases of jurisdiction based on a connection between the dispute and the State of origin, may assist Commonwealth member countries when considering joining the Convention. And civil law ASEAN countries may benefit from the clarity which Article 5 provides. Tang demonstrates in detail that most (direct) grounds of jurisdiction in Chinese law are in harmony with the indirect jurisdiction criteria of the Convention and concludes that most Chinese judgments will be eligible for recognition and enforcement under it. There is a diverging rule in Chinese law that gives Chinese courts jurisdiction if the contract is concluded in China, the subject matter of the dispute is situated in China and the defendant has disposable assets situated in China. She believes, however, that this discrepancy is ‘not fundamental or serious enough to prevent China from joining the HCCH 2019 Judgments Convention’. On the other hand, from an Arab perspective, according to Elbalti, the jurisdictional filters of Article 5 appear ‘unnecessarily complex’. For example, the choice of law system adopted by Article 5(1)(g) for the determination of the place of performance ‘is simply unknown to all MENA Arab jurisdictions’. Moreover, the ‘purposeful and substantial connection test’ adopted in Article 5(1)(g) ‘would rather create more confusion than clarity in the Arab context. This is because Arab courts are not familiar with this notion and also because, in almost all MENA Arab countries, jurisdiction in contractual matters is usually based either on the place of the conclusion of the contract or the place of its performance’. Nevertheless, Elbalti considers that the problem here lies more with the Arab countries which need to reform their rules of international jurisdiction, and his overall assessment of the Convention’s usefulness for Arab countries is positive. Rumenov notes the considerable variety between South-East European States with respect to (direct and) indirect jurisdiction criteria. This applies, for example, to the determination of habitual residence (Article 5(1)(a)) in some countries, to the fact that in many of those countries the jurisdictional criterion of the principal place of business for natural persons conducting business activities (Article 5(1)(b)) is unknown, and to the way they deal with express consent and submission (Article 5(1)(e) and (f)). Also, the jurisdictional bases for both contractual and non-contractual obligations in most of these countries are much broader than those required by Article 5(1)(g) and (j). Judgments on contractual and non-contractual obligations from these countries, therefore, ‘will rarely pass this jurisdiction filter’, but may be enforceable under other filters of Article 5 or under national law according to Article 15. This is probably true for judgments rendered by the courts of many other States as well. All in all, Rumenov expects more clarity and uniformity for the South-East European region from Article 5, and, regarding exclusive choice of court agreements, from the HCCH 2005 Convention.

30 Office of Civil and Criminal Justice Reform, The Commonwealth, Model Law on the Recognition and Enforcement of Foreign Judgments (Commonwealth Secretariat 2018), available at: thecommonwealth.org/commonwealth-model-laws. The Model Law was endorsed by the Commonwealth Law Ministers in 2017. See also, A Yekini, The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective (Hart Publishing 2021).

366  Hans van Loon As for the United States and Canada, Saumier and Silberman are of the opinion that ‘most of the filters in Article 5(1) should be uncontroversial … they are consistent with the rules regarding jurisdiction of a foreign court for the purposes of enforcing its judgment in both countries … Moreover, the filters are also largely compatible with existing jurisdictional rules for the assumption of jurisdiction by courts in both countries, which will satisfy the “eligibility” condition for circulation of judgments from the United States or Canada in other Contracting States’. They note that Article 5(1)(f) on implied consent contradicts the recent decision of the Canadian Supreme Court holding that defending on the merits implies submission even if the defendant has protested the court’s jurisdiction. In such a case, therefore, if the foreign judgment meets no other jurisdictional criterion under Article 5, it will have no effect under the Convention, but may be recognised and enforced under Canadian national law. Likewise, as the jurisdiction exercised by courts in both the United States and Canada in proceedings against consumers and employees is broader than the jurisdictional filters of Article 5(2), some US and Canadian judgments against consumers and employees will not be enforceable under the Convention. This also applies to Canadian judgments on torts, which may be rendered by the courts for the place of injury alone: such a judgment will not pass the filter of Article 5(1)(j). In contrast, this filter corresponds with the position under the law of the United States, where the Supreme Court has ruled that the place of injury without additional purposeful conduct by the defendant does not meet the constitutional due process standard for direct jurisdiction.31 Interestingly, Saumier and Silberman comment that the Supreme Court has in fact never decided that the constitutional test for indirect jurisdiction must be the same as that for direct jurisdiction, so that ‘it might well be that the constitutional test for “indirect” jurisdiction is not necessarily the same as that for direct jurisdiction; in that case foreign judgment recognition could include judgments where the basis of jurisdiction in the foreign court does not satisfy the US constitutional requirements for direct jurisdiction’. As mentioned (above, section I.B.v), checking jurisdictional filters is not part of the procedure for recognition and enforcement in Brazil. Other MERCOSUR countries have a tradition of applying the grounds of direct jurisdiction also as indirect grounds of jurisdiction. Thus, in Argentina rules of (direct) international jurisdiction apply in the absence of international treaties’ provisions to the contrary. Ruiz Abou-Nigm considers that the new Convention could provide a more favourable and less restrictive framework based on the jurisdictional filters therein provided. From a comparative perspective, a comment may be made on Article 5(1)(f) – submission. According to the Explanatory Report,32 if in a ‘State or origin where the doctrine of forum non conveniens is available’, a defendant ‘did contest jurisdiction but, after this objection was dismissed, did not request that the court decline its jurisdiction’, the judgment will be considered to meet the filter unless the defendant proves that this request had no chance of success. This may be a fair rule if defendants are embedded in, or at least familiar with, such a jurisdiction, but what if they are not? And when does a jurisdiction qualify as one ‘where the forum non conveniens doctrine is available’?

ii.  Article 5(3) and Article 6 These Articles do not elicit comments from the contributors, except for Stein and Vysoka, who point out that while Article 5(3) limits the recognition and enforcement of judgments on residential tenancies to decisions rendered by a court of the State where the immovable property is



31 See,

eg, J McIntyre Machinery, Ltd v Nicastro, 564 US 873 (2011). and Saumier (n 2) para 178.

32 Garcimartín

General Synthesis and Future Perspectives  367 situated, this does not apply to judgments on non-residential (commercial) tenancies, and that such judgments are likewise not addressed by Article 6. Therefore, they fall under Article 5(1). As Stein and Vysoka explain in detail, this contradicts the EU policy objective, reflected in the Brussels Ia Regulation,33 which prompted the EU to avail itself of Article 18 and make the declaration mentioned (above, section I.D.i).34

iii.  Article 15 The Convention provides a floor, not a ceiling, and permits broader recognition and enforcement of judgments covered by the Convention under national law.35 As the Explanatory Report points out, subject to Article 6, Article 15 is based on a principle of favor recognitionis.36 Saumier and Silberman stress the particular importance of this rule to the United States and Canada where recognition and enforcement of judgments is generally more generous than the Convention requires. Given the limitations of various jurisdictional filters of Article 5, this is likely to be true as well for a number of other States, including most EU Member States and MERCOSUR States.

G.  The Grounds for Refusal The contribution by Dotta Salgueiro gives an extensive and detailed analysis of Article 7, including a discussion of the provisions of Articles 8–10 (preliminary questions, severability and damages).

i.  Article 7 The seven grounds for refusal listed in Article 7(1), which are largely similar to those of the HCCH 2005 Convention, are exhaustive but – contrary to the obligatory ground for refusal implied in Article 6 – not mandatory. Meier makes the point that their optional nature … indicates that [the Convention’s] 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 Convention, but also a risk for the defendant.

He rightly points out that in a case of insufficient notification of the defendant, international human rights instruments, such as the European Convention on Human Rights, will stand in the way of recognition and enforcement of a judgment.37 Chong points out that several of these grounds do not, or do not fully, correspond to those provided under the laws of ASEAN countries. However, to the extent that ASEAN States’

33 Art 24. 34 For a critical comment on the ‘classic characterisation of jurisdiction for rights in rem as exclusive’ (in both the 2005 and 2019 Conventions), given that in B2B situations ‘enterprises may well want to deal with rights in rem together with other disputes or before another forum than the one located at the place where the property is situated’, which may induce them to include arbitration clauses in their deals involving commercial property, see Kessedjian (n 8) 26. 35 As Beaumont notes, the 2005 Convention likewise does not prevent a Contracting State to that Convention from recognising and enforcing a judgment based on an exclusive choice of court agreement which does not meet the formal validity requirements in the Convention, such as a trade usage, unless the chosen court has decided that the agreement is invalid as regards its substance. 36 Garcimartín and Saumier (n 2) para 326. 37 N Meier, ‘Notification as a Ground for Refusal’ (2020) 67 Netherlands International Law Review 81, 92–93.

368  Hans van Loon requirements are more liberal than those of Article 7(1), the non-mandatory nature of the Convention grounds will enable those States38 to recognise or enforce a judgment that falls under one of these grounds under either the Convention or national law. And conversely, where the national law of an ASEAN State provides for a ground for refusal not found under Article 7(1)(a), (b) or (d)–(f), the public policy ground of Article 7(1)(c) ‘will likely cater for this situation’, because it remains in essence up to each State to define the public policy defence under this provision.39 In this regard, Jang (a member of the Korean delegation to the negotiations) points out that Article 7(1)(c) is to be understood as referring to ‘the consequences of the recognition and enforcement of a specific judgment’.40 A similar reasoning applies to China. As Tang sets out, courts in China, at least in enforcing foreign arbitral awards under the York Convention, tend to interpret the public policy exception ‘very rarely’. See also her comment on China’s current exclusive jurisdiction claim for certain contracts (above, section I.D.i). Saumier and Silberman recall that while the grounds of Article 7 are non-mandatory, currently the law in the United States does mandate non-recognition of a foreign money judgment in certain circumstances.41 One of these mandatory grounds is that ‘the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with fundamental principles of fairness’. They raise the question whether the public policy exception of Article 7(1)(c) ‘presents potential tension with respect to US ratification of the Convention’, since this Article is not cast in general terms, but refers to ‘the specific proceedings leading to the judgment were incompatible etc’. May a court in the United States invoke this provision without any need to show unfairness or bias in the specific proceedings giving rise to the foreign judgment, or should the United States make use of Article 29 and refuse to establish relations with the State of origin of such judgment? For the former view they rely on the words in Article 7(1)(c) ‘the public policy of the requested State’ – and the Explanatory Report.42 Tang argues that in respect of China, the application of the mandatory rule of US law is more complicated than this rule and a recent decision of the New York Supreme Court suggest.43 ‘The fact that the Chinese judicial system is subject to the macro-supervision of the [Chinese Communist Party] does not suggest that each single judgment is tainted by their direct influence, and thus lacks independence and impartiality’. She therefore advocates a narrower reading of Article 7(1)(c) to avoid ‘political decisions’ in relation to Chinese judgments so that the requested court ‘will have to consider evidence suggesting the quality and justice of the proceedings in each single case’. One wonders whether the application of the Convention in practice might not reduce the tension between Article 7(1)(c) and a national law such as that of the United States. Assuming

38 As Garcimartín and Saumier (n 2) para 246, explain: Article 7 is addressed to States, which have a variety of options to implement this provision, including ‘leav[ing] everything to the discretion of the court’. 39 ibid, para 264. 40 J Jang, ‘The Public Policy Exception Under the New 2019 HCCH Judgments Convention’ (2020) 67 Netherlands International Law Review 97, 100, fn 16 (emphasis added). 41 s 483 of the Restatement (Fourth) of Foreign Relations, reflecting both the Uniform Acts as well as other law in the United States, provides that a court in the United States will not recognise a judgment of a court of a foreign state if: (a) the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with fundamental principles of fairness. 42 Paras 262–64. 43 Shanghai Yongrun Investment Management Co v Kashi Galaxy Venture Capital Co, 2021 NY Misc LEXIS 2492; 2021 NY Slip Op 31459(U), also discussed by João Ribeiro-Bidaoui and Cristina M Mariottini, ch 5 and Ning Zhao, ch 15 in this volume.

General Synthesis and Future Perspectives  369 that neither of the two States makes the Article 29 notification vis-a-vis the other, the judgment debtor opposing the foreign judgment will have to challenge, pursuant to Article 7(1)(c), not (or not only) the foreign judicial system in abstracto, but (also) the fairness or unfairness of the procedure in concreto. If the court is satisfied that the particular procedure was unfair, it will apply Article 7(1)(c). If, on the other hand, it finds no ground to question the impartiality of the court of origin and the fairness of the proceedings in the case at hand, then it will have reason to reject the invocation of this ground for refusal.44 To refrain from notifying under Article 29 would thus be to accept the rule of Article 7(1)(c) as a refinement – within the context and for the purpose of the Convention only – of a more far-reaching ground for refusal under national law, such as the US rule. Dotta Salgueiro, raises another important point, namely that the public policy of the requested State may not only be based on fundamental values held by that particular State, but also on universal fundamental principles of public international law, see also below, section II.C.i.a.

ii.  Article 7(2) The rules of this provision are new to some jurisdictions. Elbalti points out that, except for Lebanon, Article 7(2) has no equivalent in the Arab jurisdictions and can therefore be problematic. In the Arab countries courts do not enjoy the discretion to assess the appropriateness of their taking of jurisdiction, even in the case of lis pendens. According to Saumier and Silberman: ‘No such basis for non-recognition is found in existing law in the United States or in Canada (outside Saskatchewan and Québec) … Thus it is possible that a court in the United States or in Canada will proceed with a case notwithstanding a prior parallel proceeding in another country, and the resulting judgment could then be at risk under the Convention’.

H. Bilateralisation João Ribeiro-Bidaoui and Cristina M Mariottini provide a full account of the genesis of this Article, which builds on a long Hague Conference tradition of clauses establishing mutual treaty relations. They also point out its novel features (no distinction between Member and non-Member States of the organisation, simplification compared with the two-step bilateralisation mechanism of the HCCH 1971 Judgments Convention). Their contribution concludes that ‘the mechanism set out at Article 29 contributes to the pursuit of an advanced international cooperation characterised by coherent and more virtuous universal spaces of judicial cooperation and integration, for the benefit and the progress of international legal relations’. Even if one is not immediately won over by this presentation of the strength of Article 29, the fact is that its inclusion was a sine qua non for the adoption of the Treaty, as Ning Zhao (chapter fifteen) also points out. As such it may, as Ribeiro and Mariottini admit, not only provide ‘an incentive for States perceived as fraught with a systemic lack of due process to correct and improve, loudly and clearly, their domestic judicial systems’, but also ‘discourage certain States from seeking adhesion to the Convention’.

44 For an example of such an approach, see the recent New Zealand High Court judgment Hebei Huaneng Industrial Development Co Ltd v Shi [2020] NZHC 2992 [43]–[51], discussed by João Ribeiro-Bidaoui and Cristina M Mariottini, ch 5 and Ning Zhao, ch 15 in this volume. See also the comments on Art 7(1)(c) by Wolfgang Hau, ch 2 in this volume.

370  Hans van Loon In this regard, Chong notes the dilemma that Article 29 may pose to a number of ASEAN Member States whose judicial systems are perceived to be lacking by international standards. Such a State may ‘not want to risk the embarrassment of another Contracting Party refusing to establish treaty relations with it pursuant to Article 29. For these countries, deciding to sign up to the Convention will be a more fraught affair, entailing consideration of factors beyond the palatability of the Convention’s rules vis-a-vis enforcing a foreign judgment’. A number of African countries, among others, may find themselves in a similar position. It is to be hoped that Article 29 will remain an ultimum remedium. After all, the Convention gives parties wanting to oppose a foreign decision an array of tools. They can argue that the decision was not a ‘court’ (Hau), and/or, under Article 7, that they were not properly notified, and/or that the judgment was obtained by fraud and/or that the judgment manifestly violates public policy. Furthermore, consideration should be given to the possibility of providing international assistance to States with weak judicial systems desiring to join the Convention, see below, section II.D.

II.  Future Perspectives A. Introduction That the Convention would have universal coverage had always been the hope of the Permanent Bureau of the HCCH when, as Zhao recalls, in early 1992 it suggested to the State Department that, instead of exploring a bilateral arrangement with the countries of Europe, the United States might consider the possibility of choosing the Hague Conference as a global forum for negotiating a Convention on the recognition and enforcement of judgments.45 The Convention will not be operating in a normative vacuum. First, it coexists and may interact with other international instruments on the recognition and enforcement of decisions (see above, section I.E). The Convention is thus one of several possible avenues for recognition and enforcement of decisions, including those offered by the HCCH 2005 Choice of Court Convention, the UNCITRAL 2018 (Singapore) Convention on Mediation, and the UNCITRAL 1958 (New York) Arbitration Convention. The availability of the HCCH 2019 Judgments Convention will enlarge businesses’ strategic options for cross-border dispute settlement. Second, the Convention leaves room for more liberal recognition and enforcement rules of national and regional law. Indeed, the Convention with its Article 15, based on favor recognitionis, sends an important signal to this effect, particularly to countries which, perhaps due to a lack of legal reform (Chong/Yekini and Okoli) are currently reluctant to give effect to foreign judgments. Okoli gives the example of the leading African jurisdictions of Nigeria and South Africa, which in his view much need a courts’ driven openness to foreign judgments and would benefit from the HCCH 2019 Judgments Convention.46 Several authors of the preceding chapters (Estrella Faria, Chong, Elbalti) anticipate that a country’s ratification of the Convention may lead to reform its jurisdictional rules. Estrella Faria expects a ‘move towards enhanced due process standards as

45 The Permanent Bureau suggested ‘a cautious approach … start[ing] with examining the possibility of a traité simple [ie, a treaty on recognition and enforcement of judgments only] and see whether one could make a further step’, see Note ‘Some Reflections by the Permanent Bureau on a general convention on enforcement of judgments’ Prel Doc No 17 of May 1992, Hague Conference on Private International Law, Proceedings of the XVIIth Session, Tome I, 231–39, para 18. 46 P Okoli, Promoting Foreign Judgments: Lessons in Legal Convergence from South Africa and Nigeria (Wolters Kluwer 2019).

General Synthesis and Future Perspectives  371 a by-product of the countries’ participation in a treaty mechanism that may bar the recognition and enforcement of judgments that fail to meet acceptable procedural standards’. Third, as Dotta Salgueiro observes, the Convention is embedded in ‘a framework where human rights and UN Sustainable Development Goals (SDGs) … are an important contemporary normative part of international law’. Several other contributors (Estrella Faria, Zhao) also make this point. It seems important to dwell on this ‘framework’ for a moment, as ongoing developments regarding this ‘contemporary normative part of international law’, will have an impact on the future of the Convention, which like many HCCH Conventions, may well have a lifespan of many decades to come.

B.  The Broader Normative Context: UN Sustainable Development Goals, Human Rights, Corporate Social and Environmental Responsibility i.  The UN Sustainable Development Goals According to its Preamble,47 the Convention aims ‘to promote effective access to justice for all and to facilitate rule-based multilateral trade and investment, and mobility, through judicial cooperation’. The Convention has the potential to contribute to the achievement of basic objectives of the United Nations Agenda 2030 for Sustainable Development.48 The Agenda with its 17 Sustainable Development Goals (SDGs), although non-binding, is the result of a broad consultation and negotiation process. It offers an authoritative and comprehensive global ‘plan of action for people, planet and prosperity … urgently needed to shift the world on to a sustainable and resilient path’.49 The interrelated SDGs include a call, echoed in the Preamble of the HCCH 2019 Judgments Convention, to ‘promote access to justice for all’ (SDG 16), and an appeal for a ‘rules-based, open non-discriminatory and equitable trading system’ (SDG 17). Although the SDGs do not expressly mention recognition and enforcement of judgments, several contributions to this volume stress the relevance of the Convention for both effective access to justice and sustainable economic growth. Thus, Ruiz Abou-Nigm notes its importance in terms of international access to justice for the Latin American region. Likewise, Yekini and Okoli conclude that the ‘Convention as a modern multilateral treaty on the recognition and enforcement of foreign judgments offers positive prospects to many African countries in achieving economic prosperity’. Recent studies of the interaction between the SDGs and private international law show this potential of the HCCH 2019 Judgments Convention, and of the HCCH 2005 Choice of Court Convention, to strengthen the global implementation of SDGs.50 This includes their 47 The Explanatory Report is remarkably silent on the Preamble with one exception (para 313): ‘An essential element to ensure the effectiveness of the Convention (see para 2 of the Preamble) is the principle of non-discrimination: judgments given in other States, once they have been determined to be enforceable under the Convention, are to be treated in the same manner as domestic judgments’. 48 UN General Assembly Resolution A/70/1 Transforming our world: the 2030 Agenda for Sustainable Development adopted on 25 September 2015: www.un.org/en/development/desa/population/migration/generalassembly/docs/ globalcompact/A_RES_70_1_E.pdf. 49 ibid, Preamble, para 2. 50 R Michaels, V Ruiz Abou-Nigm and H van Loon (eds), The Private Side of Transforming our World: UN Sustainable Development Goals 2030 and the Role of Private International Law (Intersentia 2020), also accessible (open access) at: www.intersentiaonline.com/library/the-private-side-of-transforming-our-world-un-sustainable-development-goals2030-and-the-role-of-p.

372  Hans van Loon role in cross-border litigation in the field of global agro-business,51 energy,52 decent work,53 infrastructure,54 climate change55 and the environment.56 These studies also reveal some of the limitations of these Conventions.

ii.  Human Rights According to the 1948 Universal Declaration of Human Rights: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’.57 As a binding legal norm, this principle returns in the 1966 International Covenant on Civil and Political Rights, Article 14(1); the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 6(1); the 1969 American Convention on Human Rights, Article 8(1); and the 1981 African Charter on Human and People’s Rights, Article 7(1). Dotta Salgueiro recalls these human right norms in his discussion of Article 7(1)(a) of the Convention. More generally, failure to give effect to foreign decisions may constitute undue interference with the right to a fair hearing. According to the European Court of Human Rights, Article 6(1), the ECHR applies to the procedure for enforcement of foreign judgments.58 With the HCCH 2019 and HCCH 2005 Conventions, among others, in mind, the Institut de Droit International (IDI) adopted the following provision in the Final Article of its 2021 Resolution on Human Rights and Private International Law: Article 20, Recognition and enforcement of foreign judgments: 1. 2. 3.

The right to a fair hearing encompasses effective legal protection including with respect to the recognition as well as to the enforcement of foreign judgments. A foreign judgment shall not be recognized or enforced against a party’s will if the proceeding in the foreign court violated that party’s right to a fair hearing, or the competence of the court that rendered the judgment had no significant connection to the dispute. States shall promote accession to existing international instruments or the conclusion of agreements on the recognition and enforcement of foreign judgments in civil and commercial matters.59

Both the HCCH 2019 and the HCCH 2005 Convention aim to ensure the legal protection mentioned in paragraph 1. As paragraph 2 demands, both instruments require the protection of the party’s right to a fair hearing in the proceedings leading to the foreign judgment. This includes proper notification (2019: Article 7(1)(a),60 2005: Article 9(c)); non-discrimination regarding security for costs (2019: Article 14); and perhaps also the prohibition of review of the merits of the judgment (2019: Article 4(2), 2005: Article 8 (2)). Likewise, both Conventions require

51 ibid, Jeannette ME Tramhel, SDG 2: Zero Hunger. 52 ibid, Nikitas E Hatzimihail, SDG 7: Affordable and Clean Energy. 53 ibid, Ulla Liukkunen, SDG 8: Decent Work and Economic Growth. 54 ibid, Vivienne Bath, SDG 9: Industry Innovation and Infrastructure (referring in particular to the 2005 Convention, with critical remarks). 55 ibid, Eduardo Álvarez-Armas, SDG 13: Climate Action. 56 ibid, Richard F Oppong, SDG 6: Clean Water and Sanitation; Drossos Stamboulakis/Jay Sanderson, SDG 15: Life on Land. 57 Art 10. 58 See, European Court of Human Rights, 23 May 2016, Avotiņš v Latvia, No 17502/07, also mentioned by Meier (n 37). 59 Institut de Droit International, Online Session – 2021, Resolution prepared by the Fourth Commission (Rapporteur F Pocar), 4 September: www.idi-iil.org/app/uploads/2021/09/2021_online_04_en.pdf. 60 But see above, section I.G.i (comments Meier).

General Synthesis and Future Perspectives  373 a significant connection between the jurisdiction of the court of origin and the dispute (2019: Articles 5 and 6, 2005: Article 5). Finally, paragraph 3 of the Resolution is a barely disguised exhortation to accede to both Hague Conventions. Although Article 20 does not go as far as the original Rapporteur Basedow had suggested,61 the HCCH 2019 Judgments Convention accomplishes what he had in mind: in the relations between Contracting States, it breaks the principle of not giving effect to foreign decisions, it does away with reciprocity as a condition for the recognition and enforcement of judgments emanating from another State Party, and it prohibits the review of the merits of a foreign decision. The Resolution also includes the following rule: Article 19 Corporate Social Responsibility States and international organizations shall make sure that corporations respect corporate social responsibility, including human rights, social and environmental rights and the fight against corruption.

In summary form, this Article reflects important recent, ongoing developments, at the global, regional and national level regarding corporate responsibility in social, environmental and governance matters.

iii.  Corporate Social Responsibility At the global level, the 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs),62 especially address corporate social responsibility in relation to human rights. They apply not only to companies’ own operations, but also to all of their business relationships including those throughout their value chain. While the primary responsibility to protect human rights lies with States, companies everywhere, large and small, have a responsibility to respect human rights, and they also have a certain responsibility to provide remedies when things have gone wrong. The UNGPs are not binding, and yet they have become the dominant paradigm for discussing corporate responsibility, not just in relation to social matters, but also to the environment and corporate government. Efforts are under way at the UN to establish a binding instrument on business and human rights.63 At the regional level, the EU Commission in February 2022 published its Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence.64 One of the main objectives of the Proposal is to ‘improve access to remedies for those affected by adverse human rights and environmental impacts of corporate behaviour’.65 As

61 In his thorough report preceding the 2021 IDI Resolution, Basedow argued that under the angle of the human right to a fair hearing (1) the flat refusal by some States to give effect to foreign judgments in the absence of a treaty providing for such effect, (2) the requirement of reciprocity as a condition for recognition and enforcement, and (3) the review of the merits of a foreign judgment, are all doubtful. He proposed that such rules be declared incompatible with the parties’ right to a fair hearing. See 79 Yearbook IDI (Pedone 2019) 1, 60–62. 62 See: www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf. Other relevant texts at the global level, in addition to the UNGPs and Agenda 2030, include the 2008 United Nations Human Rights Council ‘Protect, Respect and Remedy’ Framework, basis of the UNGPs, the 2012 UN Global Compact on Business and Human Rights; the 2017 ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy; and the 2018 OECD Due Diligence Guidance for Responsible Business Conduct. 63 See the 2021 draft A/HRC/49/65/Add. Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises: www.ohchr.org/en/hr-bodies/hrc/wg-trans-corp/ igwg-on-tnc. 64 See: ec.europa.eu/info/publications/proposal-directive-corporate-sustainable-due-diligence-and-annex_en. 65 At 3.

374  Hans van Loon a crucial step, victims should be able to sue the company liable for any damage caused including outside the Union through its value chain. The Proposal’s scope is not limited to companies based in the EU but also, levelling the economic playing field, to those based outside the EU but selling products and rendering services in the EU’s internal market. The text provides for a common civil liability regime. Foreign victims, therefore, will be able to seek civil remedies within the EU (Article 22 – Civil Liability, of the Proposal). This Proposal builds on a range of recent legislative and judicial developments at the national level in the EU and elsewhere.66

C.  Impact of this Context on the Practical Operation of the Convention The emerging normative framework outlined above is likely to have a growing impact on the Convention’s operation in the years and decades to come. Once in force, the Convention, will increasingly be invoked to obtain recognition and enforcement of foreign judgments on matters relating, directly or indirectly, to human rights, pollution, nature loss and climate change. The growing need to achieve sustainable management of natural resources, chemicals and waste will change modes of production and consumption,67 transport, of investment68 and banking, affecting the law of companies, contracts and torts.69 This development will reveal the possibilities which the Convention offers, but also its limitations. Some of these can probably be overcome by (creative) interpretation, others may require additional, possibly treaty, work. A few examples may illustrate both pathways.

i.  Enhancing the Convention’s Effectiveness through Interpretation a.  Judgments in Collective Actions Collective actions with a transnational aspect are assuming increasing importance. Recent examples include the Dieselgate consumer cases,70 and the UK Supreme Court Vedanta and Okpabi cases with both human rights and environmental aspects.71 Collective actions are included in both the 2019 and 2005 Conventions. However, these Conventions, like other cross-border

66 See also the 2022 Recommendation of the European Group of Private International Law (GEDIP) concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021, available at: gedip-egpil.eu/wp-content/uploads/2022/07/ Recommendation-GEDIP2022E.pdf, urging the EU legislator to increase the effectiveness of the proposed directive by adding rules on judicial jurisdiction and applicable law. 67 See, eg, Jeannette ME Tramhel, SDG 2: Zero Hunger (n 51); G Saumier, SDG 12: Sustainable Consumption and Production; The Private Side of Transforming our World (n 50). 68 See, eg, Vivienne Bath: SDG 9: Industry Innovation and Infrastructure (n 54). 69 See, eg, B Mihajlović, ‘The Role of Consumers in the Achievement of Corporate Sustainability through the Reduction of Unfair Commercial Practices’ (2020) 12 Sustainability 1, Special Issue Corporate Sustainability Reforms: Securing Market Actors’ Contribution to Global Sustainability. On the legal implications of ‘reasonable climate quality’ of goods for sales contracts, see L Sisula-Tulokas, ‘Sales law and the climate considerations’ in H Grothe, P Mankowski and F Rieländer (eds), Europäisches und Internationales Privatrecht, Festschrift Christian von Bar (Beck 2022). 70 See, eg, European Court of Justice Case C-343/19, Verein für Konsumenteninformation v Volkswagen AG, ECLI:EU:C:2020:534; and the BEUC report with details on various legal actions in Europe: www.beuc.eu/sites/default/ files/publications/beuc-x-2020-081_five_years_of_dieselgate_a_bitter_anniversary_report.pdf. 71 Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20; Okpabi and others v Royal Dutch Shell Plc and another [2021] UKSC 3.

General Synthesis and Future Perspectives  375 judgments instruments including the Brussels Ia Regulation, have been negotiated primarily with individual actions, not collective procedures, in mind. As Takashi and Tang point out, this may give rise to issues concerning characterisation of certain types of collective redress (eg, is an action brought by a competition authority still a ‘civil or commercial matter?’); indirect jurisdiction (how to construct consent of a represented claimant in opt-out procedures); and, partly related, grounds for refusal (when is an absent claimant sufficiently notified? Can a collective judgment resulting in different damages for individual claimants be enforced? What about ‘the same parties’ requirement for the refusal ground of inconsistency with other judgments?)72 As collective actions typically end in a settlement, usually with a court’s approval, further questions arise. According to both Conventions judicial settlements, enforceable in the State of origin, are eligible for enforcement in the same manner as judgments (HCCH 2019 Judgments Convention: Article 11; HCCH 2005 Convention: Article 12). What are the implications of the fact that the Conventions only provide for enforcement, not for recognition of judicial settlements? Is there a way around this? Does the argument in the Explanatory Report that, as settlements are essentially consensual no issues of indirect jurisdiction will arise, hold good for collective settlements approved by a court of a State without a sufficient connection with the case?73 What about the right of an insufficiently notified absent claimant to resist the enforcement of a court approved collective settlement? It should be possible, as Takashi and Tang illustrate, to resolve some of these issues through interpretation. For example, the text of the HCCH 2019 Judgments Convention supported by the Explanatory Report makes it clear that an out of court settlement subsequently approved by a court constitutes a ‘judicial settlement’. This is a strong argument that the same reading should apply to the HCCH 2005 Convention.74 Likewise, whether a collective action is classified as a civil or commercial matter should not depend on the identity of the representative, but on whether the action seeks to enforce private rights between private parties.75 Other interpretative solutions risk being more difficult. The language of Article 7(1)(a) on sufficient notification in the Conventions referring to the ‘document which instituted the proceedings’ to the ‘defendant’ to arrange for his ‘defence’, do not quite suit the protection of the absent claimant in collective settlements. It will require creative interpretation to ensure the protection of the right to a fair hearing of the absent claimant. However, that will not be possible, for example, in respect of the omission in the Conventions of ‘recognition’ of settlements. Repairment of that omission would require an amendment of the text, or a new instrument.76 b.  Judgments on Non-Contractual Obligations The indirect ground of jurisdiction of Article 5(1)(j) has a restricted substantive scope: it only applies to judgments that ruled on non-contractual obligations ‘arising from death, physical

72 K Takahashi and ZS Tang, ‘Collective Redress’ in P Beaumont and J Holliday (eds), A Guide to Global Private International Law (Hart Publishing 2022). 73 Garcimartín and Saumier (n 2) para 299. 74 Contrary to the view expressed in T Hartley and M Dogauchi, Explanatory Report on the HCCH 2005 Convention (HCCH 2005) para 207. 75 Takahashi and Tang (n 72) 435. 76 ibid, 444.

376  Hans van Loon injury, damage to or loss of tangible property’. This is narrower than the 1999 Preliminary Draft Convention.77 As Franzina points out, this provision will ‘play a limited role, in particular, in commercial tort litigation, as this often revolves around economic and financial loss rather than personal injuries and damage to property’. A further major constraint of the Convention’s reach results from the fact that the act or omission directly causing the harm occurred in the State of origin, thus excluding the State, or States, where the harm occurred. These limitations risk weighing heavily in environmental litigation, including climate change cases. Again, it may be possible through interpretation of the Convention to accommodate, in some respects, the recognition or enforcement of a judgment or the enforcement of a (collective) judicial settlement in environmental proceedings. For example, it would not seem unreasonable to interpret the words where ‘such/that harm occurred’ as extending to where it ‘may occur’ to give effect to a (final) injunction to reduce or stop pollution or emission of greenhouse gases. This interpretation, now made explicit in Article 7(2) of the Brussels Ia Regulation, was also accepted for the preceding texts in which the words ‘or may occur’ were missing.78 The Explanatory Report itself provides a starting point for a broader interpretation of the scope of the sub-paragraph.79 After raising the possibility that a judgment honouring the claim of a spouse or child for moral or economic loss subsequent to the wrongful death of a spouse or parent will not meet the condition of Article 5(1)(j), ‘because it excludes non-physical injuries and deals only with harm directly caused’, the Report continues suggesting, ‘[a]lternatively’, that such a claim may well pass the test of the sub-paragraph as it ‘deals with non-contractual obligations arising from death’. Bearing in mind the access to justice dimension of the Convention, the latter interpretation is clearly preferable. Still, while such broader interpretation will give more substance to the sub-paragraph, other limitations remain, including the exclusion of economic and financial loss in environmental cases. It will not facilitate the enforcement of a foreign judgment or judicial settlement, perhaps in a collective action (such as the Okpabi case mentioned above), which compensates victims for loss of livelihood as a result of pollution of their fish pond or agricultural land caused by a foreign oil drilling company. If the judgment or settlement is not eligible for enforcement pursuant to other provisions of the Convention, then these victims may attempt to seek enforcement pursuant to Article 15 under national law. Possibly also, part of the foreign judgment may be enforceable under the Convention (eg, if, in the example of the fishermen, the judgment also awards compensation for loss of property) but not the rest of the judgment. This will then activate both Articles 15 and 9 on severability.

77 The 1999 Preliminary draft Convention on jurisdiction and recognition and enforcement of judgments in civil and commercial matters provided (Art 10): ‘A plaintiff may bring an action in tort or delict in the courts of the State a) in which the act or omission that caused injury occurred, or b) in which the injury arose, unless the defendant establishes that the persons claimed to be responsible could not reasonably have foreseen that the act or omission could result in an injury of the same nature in that State’, see: assets.hcch.net/docs/638883f3-0c0a-46c6-b646-7a099d9bd95e.pdf. 78 See Court of Justice of the European Union, Case C-167/00, Verein für Konsumenteninformation v Karl-Heinz Henkel, ECLI:EU:C:2002:555). Similarly, the Supreme Court of Japan interpretated the words ‘place where the tort took place’ in Art 3-3(viii) of the Japanese Code of Civil Procedure as including the place where the wrongful act is likely to be committed or the place where a person’s rights are likely to be violated, Supreme Court of Japan, Case (ju) No 1781 (2011) of 24 April 2014; 68 Minshu 4 329 [2004], see B Elbalti, ‘The jurisdiction of foreign courts and the recognition of foreign judgments ordering injunction: the Supreme Court judgment of April 24, 2014’ (2016) 59 Japanese Yearbook of International Law 394, 404–06, also available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=2934702. 79 Garcimartín and Saumier (n 2) para 197.

General Synthesis and Future Perspectives  377 c.  Public Policy Article 7(1)(c), which overlaps with sub-paragraphs (a) (notification) and (b) (fraud), refers to ‘the public policy of the requested State’. As the Explanatory Report points out,80 this defence should not be triggered by every mandatory rule of the requested State (‘internal public policy’), but only ‘where such a mandatory rule reflects a fundamental value, the violation of which would be manifest if [recognition or] enforcement was permitted’ (‘international public policy’). The law of the EU may also give rise to such mandatory rules of international public policy for situations which have a close link with the Union. The contributions by Chong, Tang, Elbalti, Yekini and Okoli, and Rumenov show that the distinction between ‘internal’ and ‘international’ public policy is not generally familiar to many jurisdictions. Some may already apply this ground for refusal in exceptional cases but a number of jurisdictions may need additional guidance, which the Hague Conference may be able to provide, for example, through a practical handbook or a guide to good practice (see below, section II.D). In contrast, the distinction is familiar to Latin American jurisdictions. Dotta Salgueiro, while embracing the concept of international public policy, gives it a particular interpretation. Inspired by the Latin American tradition,81 he understands the concept as including those fundamental values that are enshrined in public international law. That interpretation limits the concept, disregarding as rules of international public policy many that derive solely from national sources. This focus on international public policy rooted in public international law is given additional topicality by the latter’s growing importance for corporate responsibility. According to the UNGPs, corporations must respect ‘the core internationally recognized human rights’ contained in the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, coupled with the principles concerning fundamental rights in the eight ILO core Conventions as set out in the Declaration on Fundamental Principles and Rights at Work.82 The draft Directive on Corporate Sustainability Due Diligence proposed by the EU Commission, which if adopted will be binding on EU Member States, adds to this list several more UN instruments, both non-binding and binding. These developments will increasingly influence the interpretation of ‘international public policy’, and thus of Article 7(1)(c). It cannot be ruled out that these emerging standards will, under certain circumstances, make it necessary for the court of the requested State to adjust (or even set aside) a norm of international public policy deriving solely from its domestic law, for example, when it finds that such norm rests too narrowly on unsustainable economic interests. It should be possible to reconcile these two conceptions of international public policy – the conception focusing on rules protecting national fundamental values, and the conception focusing on rules rooted in the international public order – for the purpose of Article 7(1)(c). That can be done by interpreting the words ‘manifestly incompatible with the public policy of the requested State’ as meaning ‘taking into account the public policy standards deriving from the public international legal order’.83 This will direct the attention of the court of the requested State 80 ibid, para 263. 81 As set out by C Fresnedo de Aguirre, ‘Public Policy: Common Principles in the American States’ (2016) 379 Recueil des cours 73; and C Fresnedo de Aguirre, ‘Public Policy in Private International Law: Guardian or Barrier?’ in V Ruiz Abou-Nigm and MB Noodt Taquela (eds), Diversity and Integration in Private International Law (Edinburgh University Press, 2019). 82 ILO, Declaration on Fundamental Principles and Rights at Work, adopted in 1998 and amended in 2022. 83 A precedent for such a qualifier of ‘public policy’ may be found, for example, in Art 23(2 (d) of the 1996 Hague Child Protection Convention, which makes the public policy exception to the recognition and enforcement of decisions subject to the qualifier ‘taking into account the best interests of the child’. See also, The Private Side of Transforming our World (n 50) 23–24.

378  Hans van Loon to these international standards, and may, in some circumstances, lead the court to review vital domestic interests thus far considered as being of ‘international public policy’ in the light of these standards, and perhaps conclude that, if the latter are incompatible with the former, they should not stand in the way of recognising and enforcing the foreign judgment.

ii.  Need for Further Work where Interpretation Falls Short Through interpretation the courts may resolve some of the limitations and ambiguities of the Convention’s text. However, not all its limitations can be resolved through interpretation and that may require fresh work. Once more, a few examples may illustrate the point. a.  Parallel Proceedings In an increasingly mobile world, the number of States with a meaningful, legal or factual, connection to a transaction or relationship is bound to increase accordingly, and with it, the risk of parallel proceedings and disparate judgments. While the Convention in its Article 7(1)(e) and (f), and (2) deals with parallel proceedings ‘at the back end’ of recognition and enforcement, resolving this issue ‘at the front end’ of original jurisdiction was outside its scope. Hence the importance of the current HCCH work on that issue, for both individual and collective actions. Herrup and Brand have proposed a novel approach for a new Hague Convention on this issue, based on the idea of the ‘better forum’. The proposed global instrument must include (1) criteria for determining the ‘better forum’ and (2) mechanisms that move cases to that forum. It should also include (1) a requirement that the parties notify the relevant courts when the same or related proceedings are lodged in two or more fora; (2) a mechanism for judicial communication to discuss the situation upon notification; (3) a fallback rule if the better forum declines jurisdiction; (4) necessary and appropriate procedural provisions eg, to expedite movement of evidence to the better forum; and (5) provisions addressing expedited recognition and enforcement of the judgment from the better forum.84

Against the background of today’s Global South and Global North divisions, and other disparities in our world, establishing such an instrument at the global level will not be an easy task.85 If undertaken, developing common global criteria to determine the ‘better forum’ and a workable global mechanism for judicial communication will be a major project requiring intense negotiations over many years. Nevertheless, the authors are right that the absence of a global mechanism for parallel proceedings is a growing ‘irritant’.86 One wonders, therefore, whether, in the short term and as a first step, a simpler solution could be put in place, in line with the HCCH 2019 Judgments Convention. This would consist of building on the ingenious proposal in the 1999 Preliminary Draft Convention, consisting of a synthesis of the mechanisms developed in common law – forum

84 P Herrup and R Brand, ‘A Hague Parallel Proceedings Convention: Architecture and Features’ (2022) University of Pittsburgh Legal Studies Research Paper No 2022-27, 3–4), available at: papers.ssrn.com/sol3/papers. cfm?abstract_id=4170254. 85 See, eg, US Court of Appeals, 2nd Circuit, 14 January 1987, In re Union Carbide Corp Gas Plan Disaster at Bhopal India in December 1984, where the Court ruled that India was the better forum despite the fact that the government of India initially supported the US lawsuit, admitting that the Indian court system at the time was unable to handle the cases. 86 P Herrup and R Brand, ‘A Hague Convention on Parallel Proceedings’ (2021) 63 Harvard International Law Journal 9.

General Synthesis and Future Perspectives  379 non conveniens – and civil law – priority of the court first seised.87 A protocol to the HCCH 2019 Judgments Convention could develop this proposal further for the benefit of States Parties to the Convention.88 After all, those States, having accepted the jurisdictional filters of Articles 5 and 6, should have no difficulty accepting those criteria also to determine the original jurisdiction of courts for the purpose of parallel proceedings only within the limited scope of the Convention. Admittedly, this would be a far more modest and less visionary approach than that proposed by Herrup and Brand. However, like their proposal, it would avoid any attempt to establish direct bases of jurisdiction in general – one of the ‘lessons’ of the history of the Convention (Zhao) – and would not interfere with their more comprehensive long-term proposal, but would just help facilitate the operation of the HCCH 2019 Judgments Convention in the short term, and possibly provide a pilot project for the development of some of the features of the Herrup/Brand proposal, such as a mechanism for judicial communication, as discussed by Zhao in her contribution. b.  Collective Actions The 2005 and 2019 Conventions include collective redress in their scope, but they are ‘ill-equipped to deal with the features of collective procedures’89 despite their increasing importance. Creative interpretations may help to some extent, but in order for the Conventions to effectively provide for the recognition and enforcement of judgments and settlements in international collective actions, additional legislative measures are needed. This may involve, inter alia, adding an indirect ground of jurisdiction such as the State of the centre of gravity of contracts and torts in the case of multiple places of performance or tortuous action, solving the issues of notice and procedural fairness that can arise with recognition and enforcement of judgments against represented claimants, and providing for the recognition of collective settlements, which is currently lacking in the Conventions.90 c.  Environmental Proceedings In a carefully crafted note for the attention of the 2019 Diplomatic Session the Permanent Bureau had suggested the possibility of including marine pollution in the HCCH 2019 Judgments Convention. Existing international instruments do cover marine pollution from vessels, but ‘other types of marine pollution detailed by UNCLOS, including land-based, seabed, “Area”, dumping, and atmosphere marine pollution from other sources are largely unregulated’. The inclusion of marine pollution would span a wide array of different types of claims, ranging from damage caused to the environment from hydrocarbon drilling operations in the seabed to economic losses suffered by fishing and tourism businesses as a result of marine pollution that stems from land facilities’ poor waste disposal.91

87 As also recently suggested by A Arzandeh and M Lehmann in their contribution, ‘Conflicts of Jurisdiction’ in P Beaumont and J Holiday (eds), A Guide to Global Private International Law (Hart Publishing 2022). 88 See also, LE Teitz, ‘Another Hague Judgments Convention? Bucking the Past to Provide for the Future’ (2019) 29 Duke Journal of Comparative & International Law 491, 503. 89 Takahashi and Tang (n 72) 447. 90 ibid. 91 Note on reconsidering ‘marine pollution and emergency towage and salvage’ within the scope of the draft Convention on the recognition and enforcement of foreign judgments in civil or commercial matters, Prel Doc No 12 of June 2019: fe3af6ed-5c0e-47ff-887b-ad0ce8feb6a1.pdf (hcch.net) para 50.

380  Hans van Loon However, although the Diplomatic Conference did not decide to exclude marine pollution entirely (as the HCCH 2005 Convention does), it decided to exclude, in addition to ship-source marine pollution, cross-border marine pollution and marine pollution in areas beyond national jurisdiction. More generally, the Convention with its limited indirect ground of jurisdiction for tortuous action excluding the locus damni and limitations regarding collective proceedings is not particularly aimed at encouraging the circulation of judgments and increasing legal certainty in environmental matters. One way of filling this gap would be to amend the Convention by means of a protocol to bring it more into line with these objectives. As a more ambitious project, the Hague Conference might resume the idea of a global instrument on adjudicatory jurisdiction, applicable law, and recognition and enforcement of judgments, supported by a system of institutional cooperation, which was previously on its agenda. The technical feasibility of such an instrument has already been the subject of extensive thorough research.92 The rising volume of cross-border civil litigation in environmental and climate change matters and the ongoing normative paradigm shift referred to above, suggest that the need for such a global instrument is growing by the day. The suggestions (i)–(iii) are of course not intended to minimise the need to review other exclusions, discussed by Kramer, like defamation and privacy and intellectual property. And above all, they do not in any way detract from the need to see the Treaty enter into force on a broad scale soon.

D.  Post-Convention Work: Ensuring Uniform Interpretation, Promotion and Support i.  Ensuring Uniform Interpretation Interpreting the Convention ‘in an international spirit to promote uniformity of its application’,93 so that it can fully serve its purpose, will help ensure that the Convention functions in a diverse and rapidly changing global environment. The 1999 Preliminary Draft Convention contained a provision similar to Article 20 but reinforced by a second paragraph to the effect that ‘the courts of each Contracting State shall, when applying and interpreting the Convention, take due account of the case law of other Contracting States’.94 Although an analogous provision is lacking in the Convention, it would be very helpful, and indeed necessary, to establish a system that would facilitate taking due account of each other’s decisions. Such a system obviously requires a database of case law that is freely accessible, preferably combined with, or linked to, that for the HCCH 2005 Choice of Court Convention. To help feed

92 The Permanent Bureau prepared several studies on the topic, including ‘Note on the law applicable and on questions arising from conflicts of jurisdiction in respect of civil liability for environmental damage’ (Adair Dyer), April 1995, A&D XVIIIth Session, Tome I, 72 et seq, and ‘Civil Liability Resulting from Transfrontier Environmental Damage: A Case for the Hague Conference?’ (Christophe Bernasconi), April 2000, A&D XIXth Session, Tome I, 320 et seq. In April 1994, the University of Osnabrück, in cooperation with the Hague Conference, organised an in-depth scientific colloquium, the proceedings of which – mostly in English, some in French – may be found in C von Bar (ed), Internationales Umwelthaftungsrecht, I (C Heymanns 1995). 93 Garcimartín and Saumier (n 2) para 352. 94 See Preliminary Draft Convention on Jurisdiction and foreign judgments in Civil and Commercial Matters adopted by the Special Commission; and P Nygh and F Pocar, Prel Doc No 11 (2000): assets.hcch.net/docs/638883f3-0c0a-46c6b646-7a099d9bd95e.pdf, Article 38 (see also bracketed Arts 39 and 40).

General Synthesis and Future Perspectives  381 this database, and select important judgments, a network of liaison judges, or courts, of States Parties could be established. Such a network may develop into a global community, which could be supported by a periodical newsletter with contributions from judges. In due course, a practical handbook could systematise the case law, elucidate concepts not defined by the Convention such as ‘employee’,95 ‘contractual obligation’ or ‘non-contractual obligation’ (Franzina) and over time grow into a good practice guide (see also above, section I.E.i). Making materials available in many, including at least the five official UN languages, will be essential. Meanwhile Special Commission meetings reviewing the practical operation of the Convention (Article 21) could make recommendations on its interpretation. None of this would be new, as the Hague Conference can build on a unique experience with ‘post-Convention services’, especially for the Children’s Conventions.96 As a further step, a legal guide jointly prepared by UNCITRAL, UNIDROIT and the Hague Conference on the instruments on dispute resolution and transnational civil procedure which they have created and continue to monitor, would undoubtedly fill a practical need. At some point in time, the absence of a global dispute resolution system for the interpretation of the Convention will be felt. This was already anticipated in the 1999 Preliminary Draft but remained without conclusions.97 An interpretative role for the International Court of Justice remains a thing of the future.98

ii.  Promotion and Support The efforts made by the negotiators to bridge differences of laws and practices, applying pragmatic and flexible approaches, should hopefully to a significant extent reduce the need for potential States Parties to change their laws, and thus facilitate the wide acceptance of the Convention (Zhao). However, more than a few countries may nevertheless be, or feel, unable to join the Convention, possibly also because they fear the risk that their accession might trigger the sanction of Article 29 by some States (above, section I.H). Promoting the Convention to such States may therefore need to be accompanied by efforts to enhance their capacity to implement and operate the Treaty properly.99 This is of course the primary responsibility of each such State, but could be facilitated by tailor-made assistance, for example to strengthen (parts or sectors) of the justice system, and to provide education and training to judges. Again, the Hague Conference

95 See G van Calster, ‘Of giggers and digital nomads – what role for the HCCH in developing a regulatory regime for highly mobile international employees?’ in T John, R Gulati and B Köhler (eds), The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar 2020). 96 See, eg, the Special Sections on Adoption, Child Abduction and Child Support: www.hcch.net/en/home. 97 [Article 40 1. Upon a joint request of the parties to a dispute in which the interpretation of the Convention is at issue, or of a court of a Contracting State, the Permanent Bureau of the Hague Conference on Private International Law shall assist in the establishment of a committee of experts to make recommendations to such parties or such court. [2. The Secretary General of the Hague Conference on Private International Law shall, as soon as possible, convene a Special Commission to draw up an optional protocol setting out rules governing the composition and procedures of the committee of experts.]]: assets.hcch.net/docs/638883f3-0c0a-46c6-b646-7a099d9bd95e.pdf. 98 See JHA van Loon and S de Dycker, The Role of the International Court of Justice in the Development of Private International Law (Asser Press 2013) ch III: Some thoughts on the possible future role of the World Court for the development of private international law: knvir.org/knvir-site/wp-content/uploads/2014/02/preadvies-2013.pdf. Note, in this connection, that as Andreas Stein and Lenka Vysoka point out (ch 7 in this volume), the Court of Justice of the European Union (CJEU) will be responsible for interpreting the rules in the Convention and its interpretation will be binding on the courts of all EU Member States. Moreover, the CJEU will also become a court of a Contracting Party whose judgments may circulate under the Convention. This will increase the need for uniform interpretation at the supra-regional level. 99 cf Bonomi and Mariottini (n 14) 567.

382  Hans van Loon has a great deal of experience in this respect in a wide array of countries in all continents, including through its Regional Offices for Latin America and the Caribbean (since 2005) and for the Asia-Pacific region (since 2012). Such programmes have often been set up jointly with Members and with other international organisations. Given its leadership in joining the Convention, inspired by the wish to seeing it expand ‘soon’,100 the EU may well give consideration to joining the Permanent Bureau in its endeavours to reach out to States willing to embrace the Convention but which need technical support.

100 Statement by the EU Commissioner for Justice Didier Reynders on the occasion of the EU accession on 29 August 2022.

INDEX acta iure imperii, 5, 7, 161–62 acts and/or omissions causing harm: acta iure imperii, 5, 7, 161–62 damage or loss of tangible property, 158 jurisdictional filters, 52, 58–60, 158, 227–28, 307, 359, 376 Africa, 281–83, 294–95 colonialism, impact of, 283 comity, 284, 287–88 exequatur proceeding, 286 Hague Conference on Private International Law African under-representation, 292–93 potential benefits for Africa, 293–94 judgment recognition systems, 283 civil law jurisdictions, 284, 289 common law jurisdictions, 283, 288–89 Islamic law jurisdictions, 284 legal diversity, 284 judicial cooperation, 284–87 legal obligation, 285, 288 reciprocity, 285–86, 288–89 res judicata, 295 African Continental Free Trade Area (AfCFTA), 281–83, 289–91, 293, 295 agencies: China, 305–6, 328 exclusion of government agencies declarations, 8, 138, 161–62, 328 jurisdictional filters, 51–52 EU, 155, 160–61 SEE region, 219 Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters, see Denmark Agreement 2005 American Association of Private International Law (ASADIP): transnational access to justice, 250 anti-trust matters, 4–5 specific exclusion, 15–16, 19, 58, 326, 327–28, 361 HCCH Choice of Court Convention compared, 10–11 applicable law, 12–13, 33–34, 54 HCCH Choice of Court Convention, 129–30, 133

appropriateness of jurisdiction, 41–43 Arab World, see Middle East and North Africa arbitration, 4, 10, 139, 337–38 development of international law, 338, 341–42 ECOSOC, 339 New York Convention, 339 UNCITRAL, 339–40 UNIDROIT, 339–41 domestic practice, 345–46 judiciary, relationship with, 347–48 interim measures, 350 Judgments Convention, relationship with, 349–53 litigation and arbitration compared, 342–45 party autonomy, 344–45 setting aside arbitral awards, 352–53 settlement agreements, 353 validity of arbitration agreements, 339 see also New York Convention; UNCITRAL Model Arbitration Law arbitration agreements: validity, 339 arbitration awards: execution of in foreign countries, 339 setting aside, 352–53 Argentina: 1979 Inter-American Convention, 246 Law Leñas Protocol, 242 Montevideo Treaties, 245 national provisions, 248 see also MERCOSUR region Association of Southeast Asian Nations (ASEAN), 259–60, 278–79 civil law countries, 262–65 common law countries, 260–61 Judgments Convention, relationship with, 265–66, 273 application of, 273–74 finality, 266 grounds for refusal, 269–72 implementation, 275–78 indirect jurisdiction, 266–69 non-monetary judgments, 273 reciprocity, 272–73 mixed legal system countries, 265

384  Index possible implementation of Judgments Convention, 275 ASEAN as REIO contracting party, 275–76 collective agreement of ASEAN to join individually, 276 individual membership, 276–78 Judgments Convention as base for ASEAN-specific convention, 278 autonomous minimum standard rules, 36 executio non convenions, 37 obligation to act expeditiously, 36–37 prohibition of discrimination, 37–38 Belt and Road Initiative (BRI), 259, 278 bilateralisation, 93–94, 327, 369–70 MERCOSUR region, 243, 248, 250–51 branches: jurisdictional filters, 51–52 EU, 155, 160–61 MENA region, 197–98 SEE region, 219 Brazil: Bustamante Code, 245 Law Leñas Protocol, 242 national provisions, 248 public policy exception, misuse of, 254–55 see also MERCOSUR region Brunei, 260–61, 356 non-monetary judgments, 273, 357 public policy, 270–71 see also Association of Southeast Asian Nations Brussels Regime, 3, 145–46, 317–18, 341–42 arbitration, exclusion of, 350 doctrine of cumulation of effects, 33–34 doctrine of extension of effects, 33–34 favor executionis principle, 6 interim measures, 27–28 judicial settlements, 29 Bustamante Code 1928, 245–46 Cambodia, 263–64, 356 see also Association of Southeast Asian Nations Canada, 163–64, 180, 361 direct jurisdiction, 55 grounds for refusal, 369 impact of Judgments Convention on judgments abroad, 164, 167–68, 356 impact of Judgments Convention on practice, 168–72, 356 exceptions, 175–77 jurisdictional filters, 172–75, 366 procedural issues, 177–78 implementation, 179–80 interim measures, 359 non-monetary judgments, 357 reciprocity, 357 recognition under domestic law, 367 carve outs, 139–40 arbitration, 350–51

China, 297–98, 312 China – US relations, 310–12 enforcement of judgments abroad, 301–3 Judgments Convention China’s contribution, 303–4 Chinese law and, 304–5, 306–8 One Country, two systems, 304–5 state immunity, 305–6 state-owner enterprises, 305–6 indirect jurisdiction and Chinese law, 306–8 grounds for refusal, 308–10 choice of court agreements, see exclusive choice of court agreements; HCCH Choice of Court Convention; non-exclusive choice of court agreements civil law jurisdictions, 356 Africa, 284, 293–94 reciprocity, 286, 289 ASEAN region, 262–65, 270, 358 non-monetary judgments, 273 reciprocity, 272 declarations of enforceability, 31, 357 parallel proceedings, 329, 378–79 civil procedure law, 341–42, 347–48 collective actions, 63, 374–75, 379 comity, 95–96 Africa, 284, 287–88, 291, 295 Philippines, 265 United States, 165, 357–58 common law jurisdictions: Africa, 283, 284–86, 288–89, 290, 293–94 Canada, 168–69 registration for enforcement, 31 compatibility principle (Art. 23), 241, 242–43, 246, 252 competition matters, see anti-trust matters Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), 259, 278 consent, 48, 92, 130, 215, 267, 358 consent of defendant, 63–64, 169–70, 362 consent of losing claimant, 62–63 counterclaims, 68 express consent, 219–22, 230, 365 failure to context jurisdiction, 64–65 implied consent, 173, 222–23, 366 non-exclusive choice of court agreements, 65–68, 223–24 submission, 222–23 weaker parties, consent of, 157 consumer matters, 9, 53, 66, 139, 141, 333, 361 collective actions, 374–75 consent, 63–64 declarations under Art. 18 (EU), 151, 157–60 weaker parties, 160–61 MERCOSUR region, 243, 252–53 SEE region, 229–30 US and Canada, 173–74, 366

Index  385 contractual obligations, 69, 224–25, 359, 381 intellectual property, 14 place of performance, 53–57, 157–58, 197–98 secured by immovable property, 57–58, 226–27 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, see Lugano Convention 2007 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, see New York Convention 1958 coronavirus, 297–98, 310 corporate social responsibility, 373–74 costs of proceedings (Art. 14), 39, 149–50 decisions on costs, 27, 171–72 Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, see Brussels Regime counterclaims: consent in respect of a counterclaim, 68, 198, 222, 229 damages (Art. 10), 74–75, 83–84 decisions on costs, 27, 171–72 decisions on the merits, 24–25 decisions on costs, 27 default judgments, 25–26, 132, 198, 234, 271, 359 non-monetary judgments, 26–27 payment orders, 26 procedural decisions, 25 reviews of the merits prohibition of, 185 declarations: under Art. 18, 5, 11, 16–17, 19, 328, 361–62 EU, 140, 148, 150–62, 367 non-monetary judgments, 26–27 remedies, 34 tenancies of immovable property, 152–56 weaker parties in consumer and employment matters, 157–60 weaker parties in insurance matters, 160–61 under Art. 19, 5, 8, 19, 306, 328, 373 EU, 150, 151, 156–57, 161–62 defamation and privacy matters, 12–13, 19, 139, 327–28, 361, 380 default judgments, 25–26, 132, 198, 234, 271, 359 delay: obligation to act expeditiously, 36–37 Denmark Agreement 2005, 146 development of Judgments Convention, 315–16 conclusion, 319 globalisation, impact of, 319–23 growing membership, 323–24 HCCH Choice of Court Convention 2005, 319 HCCH Enforcement Convention 1971, 317 Interim Text 2001, 317–18 lessons learned, 324–28 application of lessons to Jurisdiction Project, 328–34

negotiation dynamics, 323–24 political drive for, 319–20 disconnection clauses, 18, 146–47 discrimination, see prohibition of discrimination dispute resolution, 337–38 domestic practice, 345–47 harmonisation attempts, 338–41 civil procedure law compared, 341–42 international commercial arbitration, 342–43 Judgments Convention, 343–44 see also arbitration; New York Convention; UNCITRAL documents to be produced (Art. 12), 38–39 due process, 94–98, 174–75, 191, 242, 246, 248, 249, 347, 358–59, 369–70, 370–71 eligibility filters, see jurisdictional filters employment matters: declarations under Art. 18 (EU), 157–60 jurisdictional filters SEE region, 229–30 enforcement obligations, see recognition and enforcement obligations environmental proceedings, 379–80 establishment of treaty relations (Art. 29), 87, 88, 91–92 accession, 92–94 conventions adopting restricted signature restricted accession subject to explicit acceptance, 118–20 restricted accession subject to tacit acceptance, 113–14 restricted accession, 107–8 unrestricted accession subject to explicit acceptance, 114–18 unrestricted accession subject to tacit acceptance, 108–12 unrestricted accession subject to veto, 120–23 unrestricted accession, 103–7 conventions adopting supplementary agreements approach, 123 fully open conventions and protocols, 102 non-discrimination, 91–94 notification of intention to exclude relations, 90–91, 100 origins, 88–90 plurilateral judicial cooperation, 99–100 public policy grounds for refusal, relationship with, 94–98 reciprocity requirement, 98–100 European Commission, 13, 146, 147–48, 351 declarations under Art. 18, 150–51, 155–56 European Union: accession to Judgments Convention, 146, 147–48 declarations under Art. 18, 150–51, 156–57 judgments pertaining to a state, 161–62 tenancies of immovable property, 152–56 weaker parties in consumer and employment matters, 157–60 weaker parties in insurance matters, 160–61 reasons for joining Judgments Convention, 148–50

386  Index exclusions from scope (Art. 2), 9–11 anti-trust matters, see anti-trust matters arbitration, see arbitration competition matters, see anti-trust matters declarations regarding specific matters, see declarations defamation and privacy, see defamation and privacy intellectual property, see intellectual property exclusive choice of court agreements, 66–68, 125–26 asymmetrical choice of court agreements, 127–29 choice of court, 126 consumers, 139 deemed exclusivity, 126–27 duties on chosen court, 136–37 duties on non-chosen court, 137–38 employees, 139 grounds for refusal, 271, 363 procedural validity, 129 recognising and enforcing judgments, 132–34 substantive validity, 129–30 written requirement, 129 executio non conveniens, 37 exequatur proceedings, 3, 25, 31 Africa, 286 arbitration, 349 MENA region, 183–84, 186–87, 202, 205, 206, 356, 357 favor recognitionis principle (Art. 15), 6–7, 29–30, 35, 206, 210, 214, 247–48, 252, 254, 367 “first-in-time” rule, 78 forum non conveniens compared, 329, 333–34 see also lis alibi pendens forum non conveniens, 78, 135, 136–37, 331, 366 Canada, 176, 177–78 China, 307–8 first-in-time compared, 329, 333–34 US, 176, 177–78 forum shopping, 83, 350 fraud, judgments obtained by: grounds for refusal, 66, 79–80, 133, 135, 347, 370, 377 Africa, 285 ASEAN region, 261, 265, 269–70 Canada, 165, 170–71, 175 China, 309, 311 MENA region, 185, 195 SEE region, 233–35 US, 165, 170–71, 175 global judicial cooperation, 19, 371 Africa, 286–87 attempts, 3–5 China, 299, 300, 302, 303 Hong Kong and Macau, 305 establishment of treaty relations, 91 non-discrimination, 91–94 plurilateral judicial cooperation, 99–100

public policy grounds for refusal, relationship with, 94–98 reciprocity requirement, 98–100 EU Denmark, 146 MENA region, 195 MERCOSUR region, 239–40, 241–42, 244–45, 255–56 see also reciprocity good faith, 37, 56, 61, 73, 76–77, 79, 82, 231 grounds for refusal (Art. 7), 73–74, 367–69 MERCOSUR region public policy, 243–44 procedural grounds, 74 choice of court agreements, 76 inconsistency with national judgement, 76–77 inconsistency with prior judgment, 77 lis pendens, 77–78 notification, 75–76 severability, 78–79 SEE region choice of court agreements, 235 fraud, 233–35 inconsistent judgments, 235–37 pending proceedings, 235–37 public policy, 233–35 right of defence, 231–33 substantive grounds, 74–75 damages, 83–84 judgment obtained by fraud, 79–80 preliminary questions, 82–83 public policy, 80–82 habitual residence, 46, 48–50, 141, 360–61 consumer matters Canada, 173–74 EU, 159–60 SEE region, 229 US, 173–74 contractual matters MERCOSUR region, 253 employment matters, 159–60, 173–74 Canada, 173–74 EU, 159–60 SEE region, 229 US, 173–74 SEE region, 215–18, 229, 365 Hague Conference on Private International Law (HCCH): conventions adopting restricted signature restricted accession subject to explicit acceptance, 118–20 restricted accession subject to tacit acceptance, 113–14 restricted accession, 107–8 unrestricted accession subject to explicit acceptance, 114–18 unrestricted accession subject to tacit acceptance, 108–12 unrestricted accession subject to veto, 120–23 unrestricted accession, 103–7

Index  387 conventions adopting supplementary agreements approach, 123 fully open conventions and protocols, 102 harmonisation, 91, 98–99, 132, 180, 322–23, 326 Africa, 281–82, 289–90, 291, 293–94 arbitration proceedings, 338–42, 354 UNCITRAL, 338, 347–48 EU, 148–49 MENA region, 209 MERCOSUR region, 242, 244–45 SEE region, 213, 223 HCCH Choice of Court Convention 2005, 4, 341, 342 declarations, alteration by, 139–40 duties on chosen court, 136–37 duties on non-chosen court, 137–38 excluded matters, 10–11 Judgments Convention, relationship between, 125–26, 140–41, 362–63 duties on chosen court, 136–37 duties on non-chosen court, 137–38 exclusive choice of court agreements, 126–31 non-monetary judgments, 131–36 scope, 138–39 scope exclusions, 10–11, 138–39 see also choice of court agreements; exclusive choice of court agreements HCCH Civil Procedure Convention 1954, 120–21, 341 HCCH Enforcement Convention 1971, 93, 322, 327 HCCH Evidence Convention 1970, 4, 92, 119, 341 HCCH Judgments Convention 1971, 21, 39, 123, 195, 317, 341–42, 369 HCCH Maintenance Convention 2007, 23, 36, 37–38 HCCH Service Convention 1965, 4, 293, 341 Hong Kong Special Administrative Region (HKSAR), 297, 298 One Country, two systems, 304–5 human rights, 71, 372–73, 377 access to justice, 75, 255–56 collective actions, 374–75 grounds for refusal, 133–34, 367–68 international standards, 23, 347 immovable property, see rights in rem in immovable property inconsistent judgments: grounds for refusal, 375 ASEAN region, 269 China, 309 inconsistency with national judgment, 74, 76–77, 191–92, 194, 235–37, 269 inconsistency with prior judgment, 74, 77, 134, 175, 191, 198, 237, 269, 309 judgments inconsistent with public policy, 177, 180, 189–90 MENA region, 189–90, 191–92, 194, 198 SEE region, 235–37

indirect jurisdiction (Arts. 5 and 6), see jurisdictional filters Indonesia, 262, 264–65, 273, 356 see also Association of Southeast Asian Nations insurance matters, 16, 151 declarations under Art. 18 (EU) weaker parties, protection of, 157, 160–61, 361 intellectual property matters, 4–5, 9, 10–11, 13–15, 19, 24, 139, 324, 344, 361 Inter-American Convention on Extraterritoriality of Foreign Judgments and Arbitral Awards (CIDIP II (Montevideo)) 1979, 246 Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments (CIDIP III (La Paz) 1984, 247 interim measures: arbitration, 349–50 UNCITRAL Model Law, 340 exclusion of, 5–6, 21–22, 27–28, 172, 359–60 international public policy, 80–82, 188–89, 243–44, 249, 253–55, 377–78 Islamic law jurisdictions: Africa, 284, 291 MENA region, 189–90, 198 judgment, concept of, 5–6, 21–22 common courts, 24 court decision concept, 22–24 decisions on the merits, 24–25 decisions on costs, 27 default judgments, 25–26 non-monetary judgments, 26–27 payment orders, 26 procedural decisions, 25 judicial settlements, 28–29 lis alibi pendens, 30 judgments by consent (jugements d’accord), 29 judicial settlements, 28–29 enforceability, 31, 185, 353, 362, 364, 375–76 jurisdictional filters (Arts 5 and 6), 69, 364–67 Arab World, 203–4 Canada, 172–75 categories of filters, 47–48 concurrent versus exclusive filters, 44 consent, based on consent of defendant, 63–64 consent of losing claimant, 62–63 counterclaims, 68 failure to context jurisdiction, 64–65 non-exclusive choice of court agreements, 65–68 consumer protection, 157–59 employee protection, 157–59 equality of listed filters, 45 impact, 326 insurance matters, 161 objective connections, based on

388  Index location of branch, agency or other establishment, 51–52 location of immovable property, 60–61 location of property serving as security, 57–58 place of act/omission that caused harm, 58–60 place of administration of trust, 62 place of performance, 53–57 operation of filters, 45–46 purpose, 41–44 personal ties, based on habitual residence, 48–50 place of business, 50–51 SEE region, 214 connection between claim and court of origin, 224–30 connection with defendant, 215–19 consent to jurisdiction of court of origin, 219–24 see also Southeast European (SEE) region tenancies of immovable property, 154–55 United States, 172–75 Jurisdiction Project, 69, 320 Experts’ Group, 328–30 lessons from Judgments Convention appropriate forum, 333–34 connections, 333 cooperation versus coordination, 334 mutual trust, 331–32 substantive scope, 332–33 parallel proceedings, 100, 137, 316 Working Group, 330–31 Lao PDR, 263, 266, 267–68, 269, 271, 356 see also Association of Southeast Asian Nations Las Leñas Protocol on Cooperation and Jurisdictional Assistance in Civil, Commercial and Administrative Matters 1992, 242–43, 244–45, 246, 364 Legal Affairs Bureau of the Macao Special Administrative Region (MSAR), 297, 304–5 legal diversity: Africa judgment recognition systems, 284 bridging differences, 326 bilateralisation, 327 declarations and flexibilities, 328 jurisdictional filters, 326 substantive scope, 327–28 connections, 358–59 definitions “courts”, 359 “finality”, 360 “habitual residence”, 360–61 “judgments”, 359–60 “res judicata”, 360 exclusions arbitration, 362 insurance matters and weaker parties, 361 intellectual property, 361 substantive scope, 361

non-monetary judgments, 357–58 reciprocity requirement, 357 recognition and enforcement, attitudes towards, 356–57 recognition concept, 356 legal obligation doctrine: Africa, 284, 285, 288, 356 lex loci executionis, 35–36 obligation to act expeditiously, 36–37 lis alibi pendens, 30 ASEAN region, 269 asymmetrical jurisdiction clauses, 128–29 Canada, 176 grounds for refusal, 77–78, 135, 136–37 MENA region, 192, 205, 369 SEE region, 236–37 US, 176 see also “first-in-time” rule Lugano Convention 2007, 3, 17, 18, 146–47, 151, 220–21, 226, 317, 341–42 Malaysia, 260–61 see also Association of Southeast Asian Nations MERCOSUR region, 239–42, 256–57 bilateral agreements, 247–48 Bustamante Code, 245–46 grounds for refusal public policy, 243–44 Inter-American Conventions CIDIP II, 246 CIDIP III, 247 Judgments Convention, impact of complexities, 250–51 coordination and compatibility clauses, 251–52 international access to justice, 255–56 jurisdictional filters, 252–53 public policy exception, 253–55 Las Leñas Protocol, 242–43 compatibility rule, 243–44, 244–45 grounds for refusal, 243–44 indirect jurisdiction, 243 public policy, 243–44 Montevideo Treaties, 245 see also Argentina; Brazil; Paraguay; Uruguay Middle East and North Africa (MENA), 181, 209–10 bilateral conventions, 199–200 codification of enforcement rules, 181–82, 182 enforcement versus recognition, 183–84 judgments concept, 184–85 prohibition of the review of the merits, 185 enforcement requirements conflicting judgments, 191–93 finality, 186–87 fraud, 194 indirect jurisdiction, 187–88 public policy, 188–90 reciprocity, 193–94 right of defence, 191

Index  389 service, 190–91 violations of laws in force of the state addressed, 194–95 Judgments Convention, relationship with, 201–2 challenges to acceptance of, 208–9 eligible judgments, 202–4 grounds for refusal, 204–5 jurisdictional filters, 203–4 priority application of international instruments, 206–7 ratification, 207–8 recognition and enforcement under national law, 206 recognition problem, 202 multilateral conventions, 195–96, 196 Riyadh Convention, 196–98 Montevideo Treaties (1889 and 1940), 245 mutual trust, 72–73, 325–26, 331–32 Myanmar, 260–61, 356 see also Association of Southeast Asian Nations New York Convention 1958, 4, 6–7, 139, 309, 337–38, 339–42, 347–48, 349–53 non-contractual obligations, 47, 375–76 jurisdictional filters place where act or omission occurred, 58–59, 359 SEE region, 227–28, 365 weaker parties (consumer and employment matters), 158 Rome II Regulation, 12 non-discrimination, see prohibition of discrimination non-exclusive choice of court agreements, 65–68, 330 consumer and employees, 139 jurisdictional filters, 223–24 recognition and enforcement obligations, 125, 134–36 non-exclusivity rule, 6–7 non-monetary judgments, 26–27, 360 ASEAN region, 261, 266, 273, 357 Canada, 170–71, 357 MENA region, 184 US, 357–58 non-unified legal systems (Art. 22): China’s one country, two systems, 305 notification grounds for refusal (Art. 7(1)(a)), 75–76, 82, 372–73, 375 ASEAN region, 270–71, 368 MENA region, 190–91 SEE region, 224, 231–33 obligation to act expeditiously, 36–37 omissions causing harm: acta iure imperii, 5, 7 damage or loss of tangible property, 158 jurisdictional filters, 52, 58–60, 158, 227–28, 307, 359, 376 One Belt One Road (OBOR) countries, 297–98 reciprocity, 298–301 Chinese judgments in OBOR countries, 301–3 see also China

Paraguay, 249 Las Leñas Protocol, 242 Montevideo Treaties, 245, 246 parallel proceedings, 30, 100, 137, 316, 378–79 Canada, 176 Expert Group discussions, 328–30 MERCOSUR region, 350 need for Parallel Proceedings Convention, 331–33, 335, 378–79 connections, 333 more appropriate forum, 334 SEE region, 236 US, 176 Working Group discussions, 330–31 see also lis alibi pendens party autonomy, 331 arbitration, 344–45, 354 limitations to, 9, 10–11, 15 payment orders, 26, 222–23 Philippines, 265 finality, 266 grounds for refusal, 270 indirect jurisdiction test, 268, 358 see also Association of Southeast Asian Nations place of administration of trust: jurisdictional filters, 62 place of business: jurisdictional filters, 50–51, 365 EU, 155 MENA region, 197–98 SEE region, 218 place of performance: jurisdictional filters, 53–57, 365 China, 307 EU, 157–58 MENA region, 197–98, 203 MERCOSUR region, 243 SEE region, 224–25 plurilateral judicial cooperation, 99–100, 101 preliminary questions (Art. 8), 75, 82–83, 367 priority application of international instruments (Art. 23): MENA jurisdictions, 206–7 privacy matters, 12–13, 19, 139, 327–28, 361, 380 procedural decisions, 25 forum non conveniens, 177–78 procedure (Art. 13): autonomous minimum standard rules, 36 executio non convenions, 37 obligation to act expeditiously, 36–37 prohibition of discrimination, 37–38 lex loci executionis, 35–36 prohibition of discrimination, 37–38 establishment of treaty relations, 91–94 public policy ground for refusal (Art. 7(1)(c)), 80–82, 133–34, 377–78 ASEAN region, 261, 269–71, 274, 368 Canada, 167, 170–71, 175, 368

390  Index China, 309, 309, 368 establishment of treaty relations, relationship with, 94–98 international public policy, 80–82, 188–89, 243–44, 249, 253–55, 377–78 MENA region, 188–90, 204–5 MERCOSUR region, 243–44, 253–55 SEE region, 233–35 US, 167, 175, 177, 368 reciprocity requirement, 17, 98–100 Africa, 284–86, 288–89, 293–94, 295 ASEAN region, 260–61, 262–65, 272–73, 357 Canada, 164–65, 167–69, 171, 357 China and OBOR, 320–21, 356 flexible reciprocity, 299–300 interpretation, 298–301 presumed reciprocity, 300–1, 357 strict de facto reciprocity, 298–99 US judgments, 311 EU, 149, 150 MENA region, 185, 193–94, 204, 208 SEE region, 212 US, 164–66, 167, 171, 357 see also global judicial cooperation recognition and enforcement obligations, 30–31 autonomous minimum standard rules, 36 executio non convenions, 37 obligation to act expeditiously, 36–37 prohibition of discrimination, 37–38 costs, 39 documents, 38–39 enforceability, 31 exclusive choice of court agreements, 132–34 lex loci executionis, 35–36 non-exclusive choice of court agreements, 134–36 non-recognition consequences of, 34–35 preconditions, 31–32 effectiveness and enforceability, 32 recognisable effects, 32–33 applicable law, 33–34 remedies, 34 recognition or enforcement distinguished, 84–85 recognition and enforcement under national law (Art. 15): Article 23, relationship with, 206–7 favor recognitionis principle, 6–7, 29–30, 35, 206, 210, 214, 247–48, 252, 254, 367 refusal of recognition, see grounds for refusal Regional Economic Integration Organisations (REIOs): ASEAN region, 275–76 EU, 146–47 relationship with other instruments (Art. 23), 5–6, 7, 19, 67, 74, 364 Article 15, relationship with, 206–7 compatibility principle, 246, 252

New York Convention, 139 REIOs and disconnection clauses, 18, 146–47 other prior agreements in force, 18, 74, 77, 134, 175, 191, 198, 237, 269, 309 remedies, 34, 256, 343, 344 corporate social responsibility, 373–74 res judicata, 360 Africa, 284, 295 applicable law, 33 ASEAN region, 272, 273 effectiveness under the law, 32 inconsistent judgments, 76–77 judicial settlements, 29 lis alibi pendens, 78 MENA region, 183–84, 202 MERCOSUR region, 242, 246, 248 recognisable effects, 33, 136 SEE region, 234, 236–37 right of defence: grounds for refusal MENA region, 191 SEE region, 231–33 rights in rem in immovable property (Art. 6), 6–7 declarations under Art. 18 (EU), 152–56 jurisdictional filters (Art. 6) contractual obligations secured by, 57–58 location of, 60–61 SEE region, 225–27 Sarajevo Convention, 212–13, 237 scope of the 2019 Judgments Convention, 4–5 exclusions from scope, see exclusions from scope non-exclusivity, 6–7 substantive scope, 7–17 see also substantive scope of 2019 Judgments Convention territorial scope, 4, 5, 17–18 see also territorial scope of 2019 Judgments Convention SEE regional Convention on Jurisdiction and the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Matters, see Sarajevo Convention severability (Art. 9), 66, 130, 131, 167, 363, 376 grounds for refusal, 74, 78–79 Sharia law, see Islamic law jurisdictions Singapore, 260–61, 270, 271–72, 277, 320–21, 323–24, 356 non-monetary judgments, 273, 357 see also Association of Southeast Asian Nations Singapore Convention on Mediation, 29, 341, 353, 362, 364, 370 South America, see MERCOSUR region Southeast European (SEE) region, 211–14, 237–38 connection between claim and court of origin consumer contracts, 229–30 contractual obligations, 224–25, 226–27

Index  391 counterclaims, 229 employment contracts, 229–30 immovable property, 225–27 non-contractual obligations, 227–28 trusts, 228 connection with defendant as jurisdictional filter branch, agency, other establishment, 219 claimant bringing claim in main proceedings, 218 habitual residence, 215–18 place of business, 218 consent to jurisdiction of court of origin express consent, 219–22 submission, 222–23 non-exclusive choice of court agreements, 223–24 grounds for refusal choice of court agreements, 235 fraud, 233–35 inconsistent judgments, 235–37 pending proceedings, 235–37 public policy, 233–35 right of defence, 231–33 jurisdictional filters, 214 connection between claim and court of origin, 224–30 connection with defendant, 215–19 consent to jurisdiction of court of origin, 219–24 Southern Common Market, see MERCOSUR region state immunity, 8, 138, 161 state-owned enterprises, 305–6 state-owned enterprises (SOEs) (China), 305–6 substantive scope of 2019 Judgments Convention, 4, 327–28 civil and commercial matters, 7–8 excluded matters, 9–10, 11–17 Choice of Court Convention compared, 10–11 competition/anti-trust matters, 15–16 declarations with respect to excluding other specific matters, 16–17 defamation and privacy, 12–13 intellectual property, 13–15 sustainable development goals, 71, 315, 335, 371–72 tacit acceptance, 88, 89, 91–93, 99 conventions adopting restricted signature, and restricted accession subject to ‘tacit acceptance’, 113–14 conventions adopting restricted signature, and unrestricted accession subject to ‘tacit acceptance’, 108–13 temporal scope of 2019 Judgments Convention, 17 territorial scope of 2019 Judgments Convention, 4, 5 opt out, 17

reciprocity requirement, 17 relationship with other instruments, 18 other prior agreements in force, 18 other subsequent agreements, 18 REIO instruments, 18 Thailand, 263, 264, 265, 273, 356 see also Association of Southeast Asian Nations transactions judiciaires, see judicial settlements Treaty on the Functioning of the European Union (TFEU), 145–46, 148 treaty relations, see establishment of treaty relations trusts: jurisdictional filters principle place of administration, 62 SEE region, 228 UNCITRAL, 337–38, 364 UNCITRAL Arbitration Rules, 340–41 UNCITRAL Conciliation Rules, 340 UNCITRAL Mediation Rules, 340 UNCITRAL Model Law, 339, 340–41, 345–46, 348, 349–50 see also New York Convention 1958 UNCITRAL Model Arbitration Law, 339, 340–41, 345–46, 348, 349–50 UNIDROIT, 339–40, 381 Principles of Transnational Civil Procedure, 24, 27–28, 341, 359 uniform interpretation (Art. 20), 56, 69, 73, 75, 380–81 United Nations Economic and Social Council (ECOSOC), 339 United States, 163–64, 180 impact of Judgments Convention on judgments abroad, 164–68 impact of Judgments Convention on practice, 168–72 eligibility filters, 172–75 exceptions, 175–77 procedural issues, 177–78 implementation, 178–79 Uruguay, 239, 240, 249–50 CIDIP III, 247 “international public policy”, 81, 244, 253–54 Montevideo treaties, 245, 246 Vienna Convention on the Law of Treaties: coordination clauses, 251 good faith principle, 37, 73 interpretation, 140–41 suspension of operation of treaties, 91 Vietnam, 263–64, 268, 269, 270, 271–72, 356, 358 see also Association of Southeast Asian Nations

392