Benefits of the 2019 HCCH Judgments Convention for Cross-Border Dealings – striking a balance between certainty and flexibility Inaugural Global Conference - 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments Hong Kong SAR, 9 September 2019 Ning Zhao Senior Legal Officer, HCCH

There was no global framework on mutual R&E of judgments! State of Play There was no global framework on mutual R&E of judgments! What exist were: Patchwork national law bilateral agreements e.g., Trans-Tasman Agreement, China Mainland and Hong Kong Arrangements, etc other international (including regional) and supranational agreements e.g., Brussels I Recast Regulation, 1993 Minsk Convention, 1992 Las Leñas Protocol, 1983 Riyadh Arab Agreement; etc

Impacts on Cross-border Dealings What a national court does/did: bilateral or supranational agreements; national rules (diverse) - statute - reciprocity - common law rules What are the outcome: No R&E Partial R&E: e.g., monetary judgments Re-litigation What does it mean for cross-border dealings: Impede international trade, business, global mobilisation What does it mean for parties: No certainty Inefficiency Reduced access to justice There is a genuine, urgent need for a global framework for the R&E of judgments, providing certainty, predictability and improving efficiency, effectiveness

2019 HCCH Judgments Convention It facilitates the circulation of judgments among its Contracting Parties It aims at enhancing access to justice and promoting international trade and investment, and mobility Ensuring meaningful judgments Reducing duplicate proceedings Reducing costs, timeframes Allowing informed choices Improving accessibility of law

The Judgments Convention and Cross-border Dealings As a whole through the establishment of a global framework for the R&E of foreign judgments - containing a set of commonly-accepted rules for R&E, some are novel, and a wider application Specifically through a balanced set of rules ensuring certainty, efficiency & flexibility, while taking into account State sovereignty and public interest involved

A wider application of the Convention The Convention applies to: Judgments on the merits, which are enforceable and effective in the court of origin containing monetary, also non-monetary relief, including costs orders arising from cross-border dealings in contracts, (incl. consumer and employment contracts) tort, property, or trusts, in the context of both online and/or traditional cross-border disputes, including collective redress, default judgments, judicial settlements.

Certainty & Predictability Judgments covered by the Convention should be recognised and enforced (Art. 4(1)) No review of the merits is allowed (Art. 4(2)) Refusal can only be based on those specified grounds (Art. 4(1)) R&E shall not be refused on the ground that R&E should be sought in another State (Art. 13(2)) Procedures for R&E are governed by the law of the requested State (Art. 13(1)) Apply jurisdictional filters provided in the Convention (in particular, Arts 5(2), (3) and 6) The Convention does not deal with national rules of international jurisdiction

Efficiency & Effectiveness Allow for severable part of a judgment for R&E (Art. 9) No security for the R&E on the basis of the nationality or residence of the judgment creditor (subject to declaration) (Art. 14(1)) Two circumstances where R&E is refused or postponed, the judgment can still be filed for subsequent application   subject to review in the State of origin, or if the time limit for seeking ordinary review has not expired (Art. 4(4));  Lis pendens in the context of R&E (Art. 7(2)). Recommended form, even if it is non-binding 

Efficiency & Effectiveness Allow for severable part of a judgment for R&E (Art. 9) No security for the R&E on the basis of the nationality or residence of the judgment creditor (subject to declaration) (Art. 14(1)) Two circumstances where R&E is refused or postponed, the judgment can still be filed for subsequent application   subject to review in the State of origin, or if the time limit for seeking ordinary review has not expired (Art. 4(4));  Lis pendens in the context of R&E (Art. 7(2)). Recommended form, even if it is non-binding 

Flexibility For facilitating the R&E does not prevent R&E based on national law, except Art. 6 (Art. 15) no mandatory grounds for refusal (Art. 4(1)) provides alternative jurisdictional filters (Art. 5(1)) allows for severable parts of a judgment for R&E (Art. 9) For State sovereignty and public interest  allows States to make declarations not to apply the Convention to  - “domestic” cases (Art. 17) - specific subject matters (Art. 18) - judgments pertaining to the State (Art. 19), etc. punitive damages may be refused for R&E (Art. 10)

Certainty v. Flexibility specified grounds for refusal (Art. 4(1)) definite jurisdictional filters (Arts 5(2), (3), 6) no security for the R&E on the basis of the nationality or residence (Art. 14(1)) Flexibility no mandatory grounds for refusal (Art. 4(1)) alternative jurisdictional filters (Art. 5(1)) declaration to the “no security” rule (Art. 14(3)) v.

Uniform Interpretation of the Convention The Text of the Convention The Explanatory Report The Text of the Convention Art. 20: Interpretation in light of the international character of the Convention and the aim to promote uniformity in its application

Concluding Remarks It should be viewed as a whole package It contains novelty rules Its rules serve different purposes - equal treatment of parties, - protecting public interest, - protecting weaker parties, etc. It strikes a fine balance between certainty and flexibility It will serve as a model for bilateral, regional arrangements or national law reform The Convention will be a “game changer” in international dispute resolution, benefiting cross-border dealings as a whole.

Thank you! Ning Zhao nz@hcch.net www.hcch.net