The 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is a considerable achievement which not many credited would be attained, Chapman Tripp partner and New Zealand Law Society Civil Litigation and Tribunals Committee member Daniel Kalderimis says.
The Final Act was signed at a ceremony on 2 July 2019 in the Netherlands. The new convention will be a single global framework, enabling the free circulation of judgments on civil or commercial matters across borders.
Uruguay became the first state to sign up to the convention after the signing ceremony.
Commenting on the Convention, Mr Kalderimis said it follows the pathway of the New York Convention for arbitral awards, the Choice of Court Convention for judgments arising out of exclusive jurisdiction clauses and now the Singapore Convention on settlement agreements arising out of mediations, in providing a simplified registration procedure for recognition and enforcement pursuant to an international treaty.
"It now remains to be seen what degree of buy-in the draft convention can attain amongst HCCH member states," he says.
He says it is the exciting culmination of the HCCH's "Judgments Project" which has been underway since 1992 "was restarted in earnest in 2011, but which - for some considerable time - still seemed unlikely to reach a firm resolution".
"It is exciting because it marks a large further step forward from the 2005 Convention on Choice of Court Agreements, which is limited to the enforcement of exclusive jurisdiction clauses. The new convention would extend recognition and enforcement protection (through the article 13 registration process) to a much wider category of civil and commercial judgments.
"The new convention has been heavily influenced by the European Brussels Regulation ((EC) No 44/2001) regime, for allocating jurisdiction and ensuring enforcement of judgments within the EU. It does not attempt to allocate jurisdiction (the as-yet-unfulfilled ambition of the Judgments Project) – which in common law countries is addressed by service out and forum non conveniens rules. But it does work like a multilateral mutual recognition of judgments treaty."
Main issues of interest
Mr Kalderimis says he sees three main issues of interest:
Scope: He says the new convention applies only to civil and commercial judgments, and not administrative, customs or revenue matters.
"Nor does it extend to the excluded areas in article 2, which include matrimonial, insolvency, defamation, competition law and intellectual property disputes."
Required jurisdictional connection: The new convention applies only to judgments obtained in the circumstances set out in article 5.
"This requires a minimum level of contact between the defendant and the state issuing the judgment. This can include habitual residence at the relevant time, express consent, submission to jurisdiction through appearances on the merits and connections arising from the relationship of the subject-matter of the judgment and the state of origin. Overall, these grounds are broad and potentially broader than the rules New Zealand applies in assuming jurisdiction without leave under High Court Rule 6.27."
Grounds for refusal: "The new convention sets out in article 7 the exclusive grounds on which recognition and enforcement, through the registration procedure, can be resisted," he says. "Some of these are analogous to grounds that exist under New Zealand common law, for instance, fraud and public policy.
"There are also exceptions for res judicata and for insufficient notice to the defendant – the relevant text of which refers to the 'fundamental principles of the requested State concerning service of documents' (art 7(1)(a)(ii)). Precisely which principles of New Zealand service requirements (which are not entirely the same as notification requirements) are fundamental and which are not would likely to give rise to some significant debate if New Zealand does sign and ratify the new convention."