[Textes] Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters

Keywords : civil and commercial matters • recognition • enforcement • world passport • Hague Conference • abolition of exequatur • entry into force

Today, 1 September 2023, the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Judgments Convention) allowing, for the first time, a judgment to travel freely not only between European Union countries but also with third countries, entered into force, just over four years after its adoption on 2 July 2019. As of today, the Convention has effect between the European Union (EU), including its Members States (except Denmark), and Ukraine.

The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters N° Lexbase : L2659LSB, adopted on the 2nd of July 2019 by the Hague Conference on Private International Law, marks a significant step forward in simplifying and facilitating the process of recognition and enforcement of foreign judgments.

The purpose of this Convention is to facilitate the circulation of judgments between the Contracting Parties by laying down not only the conditions for the recognition and enforcement of judgments but also to set out the grounds for refusal.

It is based on the models of the Brussels Convention N° Lexbase : L6340MIN, the Brussels I N° Lexbase : L7541A8S and I bis N° Lexbase : L9189IUU Regulations and the Lugano Convention N° Lexbase : L2559I8B, while establishing a new category of judgments benefiting from its provisions.

I. Main features of the Convention

• Scope of the Convention

The Convention applies to the recognition and enforcement of judgments in civil or commercial matters (art. 1), including to consumers and individual contracts of employment.

The Convention excludes certain matters from its scope, including the status and capacity of natural persons, family law matters, insolvency, the right to privacy, intellectual property, and certain barriers to competition (art. 2(1)).

Moreover, it does not apply to arbitration and related proceedings (art. 2 (3)) or to interim measures of protection (art. 3(1)(b)).

Contracting Parties may also declare that they will not apply the Convention to other specific matters (Art. 18(1)).

• Recognition and enforcement of judgments

The Convention establishes a common framework under which judgments of one contracting party will be recognized and/or enforced in another, provided that they meet the conditions for circulation and that no grounds for refusal apply.

The Convention provides a list of criteria for the requested court to ascertain whether the judgment is capable of recognition and enforcement (sometimes referred to as "indirect grounds of jurisdiction").

Consequently, the Convention does not provide for rules of direct jurisdiction applicable in the court of origin or in the court in which enforcement is sought.

• Conditions for recognition and enforcement

A judgment may be recognized and enforced under the Convention if one of the criteria listed in Article 5(1) is met.

Article 6 provides an exclusive basis for recognition of enforcement for judgments relating to rights in rem in immovable property, which may be recognized and enforced if, and only if, the immovable property is situated in the State of origin.

These are minimum conditions for recognition and enforcement.

In other words, the Convention does not prohibit or limit the recognition and enforcement of judgments under national law, bilateral, regional, or other international instruments (arts. 15 and 23), subject to article 6.

In this sense, the Convention establishes a "threshold" rather than a "ceiling" for the recognition and enforcement of foreign judgments.

• Possible grounds for refusal

Recognition and enforcement may be refused only on one of the grounds enumerated in the Convention.

These grounds for refusal are not mandatory, which gives the requested court discretion in deciding to refuse.

The grounds listed in Article 7 are widely accepted within the various jurisdictions, including public policy, procedural fairness, and conflicting judgments.

II. Contracting Parties

This Convention, which now includes the European Union (EU) [1] and Ukraine among its members, entered into force on 1 September 2023, in accordance with Article 28, paragraph 1, of the Convention.

Preceded by earlier attempts, including the 1971 Convention, which met with little international adherence, the current Convention was renegotiated at the initiative of the United States in 1992, culminating in its adoption in 2019.

So far, it has been signed by several countries, including Costa Rica, the EU, Israel, the Russian Federation, Ukraine, the United States of America, Uruguay, North Macedonia, and Montenegro.

Only the European Union and Ukraine have ratified the judgment agreement allowing its entry into force on 1 September 2023.

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