Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters ratified by UK government

The UK government has now ratified the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. It will take effect on 1 July 2025 in England and Wales and will apply to judgments in cases where proceedings are commenced after that date.

The convention is set to enable judgments in England and Wales and other signatory states, with the exception of Denmark, to be recognised and enforced across borders.

The Hague Conference on Private International Law (HCCH) provides the following list (as at 19 September 2024) of parties contracted to the convention: Albania, Austria, Belgium, Bulgaria, Costa Rica, Croatia, Cyprus, the Czech Republic, Estonia, the European Union, Finland, France, Germany, Greece, Hungary, Ireland, Israel, Italy, Kosovo, Latvia, Lithuania, Luxembourg, Malta, Montenegro, the Netherlands, North Macedonia, Poland, Portugal, Romania, the Russian Federation, Slovakia, Slovenia, Spain, Sweden, Ukraine, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Uruguay.

The convention sets out commonly accepted conditions for recognition and enforcement, as well as agreed grounds on which enforcement can be refused. The aim is to improve access to justice. The convention should also reduce the time taken to enforce a judgment in a cross-border case, as well as lowering the costs and risks involved.

The Hague Conference on Private International Law or HCCH states: ‘The Convention generally strengthens a positive national and international environment for multilateral trade, investment, and mobility.’

Background

The EU has an arrangement in place allowing cross-border enforcement of judgments. After Brexit, the UK relied on the Hague Convention on Choice of Court Agreements 2005, which allows certain judgments to be enforced, but only those where there is an exclusive English jurisdiction clause.

If there is no such clause, then a reciprocal agreement between the England and Wales and the country in question is needed in order to enforce a judgment, unless the country’s laws automatically allow for cross-border enforcement.

Litigants have had to start new proceedings to secure their rights and remedies, at great cost and involving lengthy proceedings.

The convention covers far more judgments, giving litigants more certainty should they win their case. It aims to make the process more streamlined, with the relevant law set out in one place and covering the majority of cases.

What does the new Hague 2019 convention mean?

With some exceptions, a judgment made in a state that is a party to the convention will be recognised in any other state that is a party to the convention. This means that enforcement action can be taken in either country. There will not be any review of the merits of the judgment; the court will deal purely with enforcement.

Exceptions include cases relating to family law, intellectual property, insolvency, defamation and privacy. The convention does not cover interim matters, only judgments.

Who can rely on the Hague 2019 convention?

In asking a court to enforce a judgment under the convention, the case must meet one of a number of bases or grounds on which the case is eligible. These largely relate to the defendant’s state of origin and include:

• At the time the case was commenced, the defendant’s place, residence or principal place of business was in the state of origin;
• The defendant consented to the legal jurisdiction of the state of origin, either expressly or impliedly;
• The parties selected the jurisdiction of the state of origin in an agreement other than an exclusive choice of court agreement;
• The defendant expressly consented to the jurisdiction of the court of origin in the course of the proceedings;
• The defendant argued the merits of their case before the court of origin without contesting its jurisdiction within the deadline allowed by the state of origin

Can enforcement under the new Hague 2019 convention be avoided?

In some cases, the state in which enforcement is sought (the requested state) can refuse to recognise or enforce a judgment. This includes where:

• The correct notice was not served on the defendant advising them that the original case was being brought against them;
• The original case was contrary to an agreement on jurisdiction;
• The judgment is not one that could be enforced in the state of origin;
• A financial award was made on a punitive basis but does not provide compensation for the loss or harm suffered;
• The judgment is incompatible with the public policy in the requested state;
• The judgment is inconsistent with another judgment made in the case;
• The judgment was obtained by fraudulent means.

A court can also decline to hear a case if there are related ongoing proceedings in the requested state.

A court can delay enforcement proceedings if the judgment is the subject of a review in the state of origin or if the time limit for requesting an ordinary review has not yet expired. In this case, an application can be made at a later date once the review has been completed or the time limit has expired.

Bringing a case to enforce an overseas judgment under the new convention

The process is intended to be straightforward and relatively swift. It involves registering the request for enforcement and no new case needs to be commenced. The state of origin will need to supply a certificate confirming that the judgment is eligible for enforcement in states covered by the convention.

The courts should deal with matters expeditiously, where possible.

In starting an enforcement case, the claimant will need to provide a certified copy of the original judgment, plus a certified translation, where necessary, and a certificate confirming that the judgment is eligible for enforcement in the requested state.

Comment

The ratification of the new convention means that those entering into commercial contracts can expect to face enforcement of judgments made in all relevant countries if proceedings relating to a contract are commenced after 1 July 2025. Care will need to be taken in selecting the legal jurisdiction. For most, it is likely to be beneficial to have a more straightforward process in place to request enforcement.

Parties who have an express choice of court agreement that is not an exclusive jurisdiction clause will be able to rely on the convention, should enforcement action be needed.