On 16 July 2021, the EU Commission adopted a proposal (available here) for the EU’s accession to the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the 2019 Hague Judgments Convention). The 2019 Convention is an international treaty which governs the cross-border mutual recognition and enforcement of civil and commercial judgments and is undoubtedly a significant game changer in the area of international dispute resolution.
Although it may be some time until we see the fruits of this step, this is exciting news in the context of the EU Commission’s continuing veto of the UK’s accession to the Lugano Convention.
Background to the 2019 Convention
Previously, the Hague Conference on Private International Law (HCCH) focussed its efforts on implementing a set of recognition and enforcement rules for international litigation involving exclusive choice of court agreements. This resulted in the conclusion of the 2005 Hague Convention on Choice of Court Agreements (the 2005 Convention) which entered into force on 1 October 2015.
The 2019 Convention (available here) is effectively the sister instrument of the 2005 Convention, but it is considerably wider in its scope in that it is not limited to judgments based on exclusive jurisdiction clauses. Moreover, in comparison to the 2005 Convention, under the 2019 Convention employment and consumer contracts are within scope.
Key elements of the 2019 Convention
As stated in its preamble, the 2019 Convention aims to facilitate the cross-border recognition and enforcement of judgments in civil or commercial matters emanating from the courts of contracting states to the 2019 Convention.
A key point to note is that the 2019 Convention solely applies to civil and commercial judgments and expressly excludes judgments concerning criminal, penal, administrative, revenue or customs matters. Other subject matters which are excluded from the scope of the 2019 Convention include family law matters, matrimonial property regimes, wills and succession, defamation, intellectual property matters and certain maritime matters. Moreover, areas which are treated inconsistently as between legal systems are also excluded from the scope of the 2019 Convention, and these areas include: insolvency, privacy matters and certain antitrust/competition matters. For further information, a full list of the exclusions can be found in Article 2(1) of the 2019 Convention.
Implications of the EU and UK acceding to the 2019 Convention
Should the EU accede to the 2019 Convention, and on the assumption that the UK also signs up in due course, this could significantly streamline the enforcement of judgments between the UK and the EU. At present, whilst the UK remains unable to join the Lugano Convention (as we previously discussed here), in most cases enforcement is dependent on the national rules in each country, unless of course there is an exclusive jurisdiction clause falling within the 2005 Convention.
What happens next?
Thus far, the 2019 Convention has been signed, but not yet ratified, by three states ((Israel, Ukraine and Uruguay). In order for the EU to join the 2019 Convention, the EU Commission’s proposal will have to be adopted by the European Council, which will require the European Parliament’s consent.
It will be some time before the 2019 has any impact in practice. First, because it will not be in effect for any state until a period of 12 months following ratification. And secondly, because even then, it will not apply unless proceedings were commenced when the 2019 Convention was in force for both the state of origin and state of enforcement.
In the longer term however, ratification of the 2019 Convention by both the EU and the UK would undoubtedly be a welcome step in facilitating mutual enforcement of civil and commercial judgments.
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