With a growing flow of legal decisions affecting more than one State of the world, there has been a growing need for universal tool to recognize and enforce these said decisions. Each country has its own Private International Law, State can, through bilateral conventions reach a certain fluidity in the recognition and enforcement of foreign decisions. The European Union (EU) has even developed its own Private International Law to help fluidify the circulation of legal decisions within its Member States. However, there is yet an International Convention that allows this fluidity on a larger international level. But there is one international convention that seems to be pushing towards that goal, and the EU could be a major actor in its success.
The EU, as of 29 August 2022, deposited its instrument of accession to the Convention on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters1 (HJC) of 2 July 2019. This development was initiated because the European « Commission pointed out that natural and legal persons from the EU seeking to have a judgment rendered by court in an EU Member State recognized outside the Union, faces a scattered legal landscape due to the absence of a comprehensive international framework for the recognition and enforcement of foreign judgments in civil and commercial matters’ » Consequently, this situation, « According to the Commission, [...] deters European businesses and citizens from litigating in defense of their claims. Against this background, the Commission perceives the Hague Judgments Convention as having 'the potential to improve the current system of the circulation of foreign judgments' »2. The EU’s decisions to sign this convention followed six other countries including Ukraine and the United States. But, none of these countries or the EU have yet ratified this convention.
The HJC aims at counter-measuring the uncertainties and unpredictability of Private international law. Its goal, as stated in the outline of the convention provided by the Hague Conference on Private International Law (HCCH) itself, is to create « a common framework for recognition and enforcement of foreign judgments at the international level »3. The HJC provides, through its article 5(1), a list of criteria for the eligible circulation of a judgement. This list of criteria means that there is no automatic system of enforcement, the foreign decisions must align with the dispositions of the article 5(1) of the HJC. The HJC also provides means to refuse the enforcement of foreign judgements at its article 7 with the recurring notions of public policy and fraud to keep it short. Hence the procedure of exequatur (the procedure of enforcing foreign decisions) will persist, but this convention is a right step in a future with an international system of foreign decision enforcement.
The HJC could be a major tool to help homogenize Private International Law to, hopefully, a similar level as the Brussels and Rome Conventions present within the EU and the EU itself, could play the role of the experienced entity for « free » circulation of foreign judgments.
Elliott Michaud.
1 https://assets.hcch.net/docs/806e290e-bbd8-413d-b15e-8e3e1bf1496d.pdf
2 https://www.europarl.europa.eu/RegData/etudes/ATAG/2022/733547/EPRS_ATA(2022)733547_EN.pdf 3 https://assets.hcch.net/docs/36b240ac-8228-481d-a33b-3716baf4c656.pdf
