On 21 November, the Joint Brussels Office of the UK Law Societies with the Law Society of England and Wales co-hosted a panel discussion on the Hague Conference Judgments Project. The timing of this event was particularly poignant as the Special Commission held their third meeting between 13 – 17 November which resulted in an updated draft Convention.
Cara North, external consultant to The Hague Conference on Judgments Project joined our panel to provide an update on the Convention following the meeting of the Special Commission.
Ms North began by explaining the background to the Judgments Project which started in 1992 and refers to the work carried out by the Hague Conference on two key aspects of international law:
- International jurisdiction of the courts (work which later resulted in the Choice of Court Convention 2005); and
- The recognition and enforcement of judgments abroad – work which resumed in 2011 with the creation of an Experts Group and eventually a Special Commission to draft the Convention.
Importance of the Convention
Christina Blacklaws, Vice President of the Law Society of England and Wales chaired the panel and emphasised the advantages of the Convention. She noted that given the increase in transnational activity and foreign investment, it is extremely beneficial to have a uniform system in place for the recognition and enforcement in one country of judgments issued in another country. Ms Blacklaws stated how this would offer greater certainty, a more reliable judicial infrastructure and importantly for clients, reduced costs.
Sarah Garvey, a litigator at Allen & Overy and chair of the Law Society’s EU Committee echoed the importance of the Convention for commercial parties. She stated that there is great potential for transnational civil and commercial disputes and a uniform system will provide certainty and simplicity to all countries and their citizens rather than having to rely on each country’s own national rules.
Scope of the Convention
We were also joined by Professor Paul Beaumont from the University of Aberdeen who represented the UK in the Hague Conference Judgments Project in 1996, and he is now the EU expert in the Special Commission. Professor Beaumont explained the thinking behind key articles in the draft Convention, in particular the bases for recognition and enforcement, stated in Articles 5 and 6. Professor Beaumont commented that these seem perfectly rational overall but that some had been drafted deliberately narrow. It is not yet confirmed whether intellectual property and privacy judgments will be in scope and both have been the subject of significant debate between delegations. While overall it is a much more limited Convention than Brussels I and certainly not a perfect fit, it will relieve some pressure on the UK post-Brexit for cross-border recognition and enforcement, and if the UK signed up would demonstrate to other countries that it is willing to continue on the path of common trust and cooperation.
Limitations of the Convention
There are some areas which are expressly excluded by the Convention. As noted by our panellist Dr Peter Werner, Senior Counsel at ISDA, judgments relating to insolvency, family, wills and defamation are among those out of scope. While Dr Werner acknowledged the positives the Convention brings due to the wide range of disputes it does cover he stressed the need to look at the areas excluded and find suitable solutions which cover those, specifically the area of insolvency which he believes many businesses and practitioners will also be concerned about.
There remains a question over whether intellectual property and privacy matters will be included in the final text of the Convention.
The Special Commission will recommend to the Council at its March 2018 meeting that it have a further meeting in mid-2018, and that a Diplomatic Session be convened in mid-2019. It is likely that if the Convention is concluded in 2019 it would be adopted by 2022 at the earliest.