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

2. 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, Las Leñas Protocol, 1983 Riyadh Arab Agreement; etc

3. 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

4. 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

5. 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

6. 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.

7. 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

8. 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 

9. 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 

10. 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)

11. 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.

12. 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

13. 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.

14. Thank you!
Ning Zhao