The successful conclusion of this Convention under the auspices of the Hague Conference on Private International Law (hereafter, “the HCCH”) undoubtedly marked a crucial milestone in the area of international dispute settlement in civil and commercial matters. In the specific context of the post-Brexit legal landscape, the expected ratification of the Hague Judgments Convention by both the European Union and the United Kingdom may offer a basic, yet welcome, common scheme for the mutual recognition of judgments in civil and commercial matters across the Channel if the parties decide not to use the Lugano Convention and, as the number of Contracting States grow bigger, as a significant international standard for the private international law global community.
This brief contribution sketches the relevance of this new international treaty for legal practice.
Firstly, and stating the obvious, it will not be until the new Convention enters into force that its relevance for private practice becomes measurable. There is reported work about the ratification of the Convention in several jurisdictions: Uruguay and Ukraine signed the Convention on 2 July 2019 and 4 March 2020, respectively and may well be the two first States to ratify the Convention. As the Convention, in accordance with Art. 28(1), only requires two Contracting States for its entry into force, it is reasonable to expect a speedy entry into force within foreseeable time. Furthermore, impact assessment work is ongoing in several jurisdictions, such as the European Union or Brazil. For a Convention that aspires to establish minimum international standards for the global circulation of judgments in civil and commercial matters for the benefit of “rule-based multilateral trade and investment, and mobility”,1 a significant number of Contracting States is indeed essential.
Secondly, the entry into force of the Convention may ensure a stronger position for courts in international dispute resolution, in times where commercial law practitioners may welcome a realistic alternative to arbitration. Whether the pendulum may swing back towards court litigation remains however to be seen. International mediation in civil and commercial matters may prevail in dispute settlement strategies, given the increasing focus on mediation as preferred dispute resolution method in diverse areas of civil and commercial law, and also thanks to the entry into force of the Singapore Convention on Mediation in September 2020.2
In any event, the 2019 Judgments Convention is on the radar of the dispute settlement sections of big law firms and influential practitioners. It is a welcome precedent that judges and practitioners (through “umbrella organisations” such as the International Bar Association, the International Chamber of Commerce, the International Law Association or the International Association of Judges) played an important role as Observers during the negotiations of the 2019 Judgments Convention. Their influential work should continue: law professionals should keep encouraging their authorities in charge of ratification. It is important to note in this regard that the 2019 Judgments Convention is an “open” Convention to all States and may thus also be acceded to by the more than 100 States that are not HCCH Members yet. This Convention can thus one day be as widely ratified as the 1958 New York Convention on Arbitral Awards.
While the 2005 Choice of Court Convention took ten years to enter into force, some optimistic commentators estimate that the 2019 Judgments Convention could already enter into force in 2022. Next month, when the HCCH membership gathers (online) for their annual Council on General Affairs and Policy,3 it may be possible to assess whether the entry into force of the 2019 Judgments Convention is indeed coming closer. Let us formulate the wish that the United Kingdom and the EU move towards ratification at a similar path. This would provide both sides of the Channel with more legal certainty and foreseeability in the recognition and enforcement scheme applicable to most civil and commercial judgments. Admittedly, this is a meager consolation after decades of free circulation of judgments but it is certainly a solid building block for a solid judicial cooperation in post-Brexit times.