International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2013 Issue

Private International Law Discourse


The Hague Conference Re-Launch of the Judgments Project

Carolyn A. Dubay

By: Carolyn A. Dubay, Associate Editor, International Judicial Monitor

The international community has struggled for decades to develop a comprehensive convention to allow for the recognition and enforcement of foreign judgments in civil matters. The Hague Conference on Private International Law, an inter-governmental organization created to develop multilateral legal instruments affecting transnational private disputes, has thus far been successful in concluding only one such general convention - the Hague Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the Enforcement Convention).  Since it was concluded, only five nations have joined (Albania, Cyprus, Netherlands, Portugal and Kuwait). Because of the difficulties associated with developing consensus on jurisdictional and other matters across differing common law and civil legal systems, the focus of the Hague Conference has evolved into developing a number of narrower conventions relating to recognition and enforcement of judgments in certain limited circumstances. 

In 2012, more than 40 years after the conclusion of the Enforcement Convention, The Hague Conference has decided to re-launch its efforts to develop the world’s first comprehensive and global convention on jurisdiction and enforcement of judgments in civil and commercial cases.  To begin the process of investigating whether such a convention is feasible, The Hague Conference has reconvened its Judgments Project along with its panel of experts. The Judgments Project was initially organized in 1992 to craft this ambitious convention, and from 1996-2001, the Hague Conference facilitated negotiations towards a comprehensive multilateral judgments instrument modeled in part on the European Union’s regime for the enforcement of foreign judgments under the Brussels Convention of 1968 (now formulated as the Brussels I Regulation) and the Lugano Convention. As consensus issues became more and more apparent, however, the focus of the Judgments Project narrowed and the decision was made to pursue an enforcement convention only applicable in cases involving a valid choice of court agreement. As a result of these efforts, The Hague Convention on Choice of Court Agreements was concluded in 2005 and allows for the recognition of judgments rendered in civil and commercial cases filed in courts designated in valid choice of court agreement.  Following the conclusion of the Choice of Court Convention, however, the Judgments Project was disbanded. 

To press the Judgments Project forward towards the goal of a comprehensive judgments convention, the Hague Conference has begun conducting regular meetings of a working group to consider the contours of a possible convention, along with an experts’ group to consider areas of particular difficulty in gaining consensus, such as issues relating to jurisdictional rules.   Together, the goal of the meetings is to determine the substantive scope of such an instrument, the procedural aspects of enforcing judgments, jurisdictional matters and judicial communication. The Hague Conference has also been mindful not to let the work of the Judgments Project interfere in any way with the current efforts to promote the entry into force of the 2005 Choice of Court Convention.  



The move to reconstitute the Judgments Project highlights changing political realities in the international legal marketplace that necessitate such a renewed effort. For example, increased membership in the Hague Conference has enabled broader input into how to incorporate more diverse legal traditions.  Since 2001, more than 20 countries have joined the Hague Conference, including Brazil, India, the Russian Federation, and South Africa.  Moreover, changes within the EU governance structure allow for a greater role of the EU in developing such a convention. This change is further coupled with the recast of the Brussels Regulation at the end of 2012, which allows for certain rules to apply to non-EU defendants and otherwise may supplant domestic jurisdictional rules (even in the United Kingdom) in certain situations. Finally, more international organizations have been researching possible solutions to jurisdictional issues in cross-border litigation, including the work of the International Law Association (ILA), the International Association of Judges (IAJ). 

The impetus for a renewed effort to conclude a judgments convention is also consistent with efforts in the United States to actively engage in the process.  The State Department’s Advisory Committee on Private International Law has been involved in meetings on the subject, including holding a public meeting of the Study Group on the Hague Judgments Project.  This engagement is coupled with the efforts to implement the Hague Convention on Choice of Court Agreements, which the United States signed in 2009. 

Attention in the United States to jurisdiction in transnational cases is also at the forefront of domestic policy as the United States Supreme Court recently issued two opinions limiting personal jurisdiction over foreign defendants in transnational disputes.  In J. McIntyre Machinery, Ltd. v. Nicastro, 131 Sup. Ct. 2780 (2011), the Supreme Court held that the Due Process Clause of the Constitution prohibits a court from exercising personal jurisdiction over a foreign defendant simply on the basis that the foreign manufacturer introduced a product into the stream of commerce in the United States generally.  Instead, the foreign defendant must have specifically targeted the state where jurisdiction is asserted. In Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 Sup. Ct. 2846 (2011), the Supreme Court unanimously held that personal jurisdiction did not exist over a foreign corporation based upon only the presence of the parent corporation in the state where the action was filed.  This coming term, the United States Supreme Court will also hear arguments in Daimler Chrysler AG v. Bauman (Docket No. 11-695), in which the Court will again consider the extent to which a federal or state court may assert jurisdiction generally over a foreign corporation by virtue of the contacts in the state of an affiliated entity. The Justice Department has filed a brief asserting a more restrictive view of general jurisdiction consistent with the Goodyear decision, which signals the view of the Government more generally on the stance it will take in negotiating any future multilateral convention that impacts jurisdiction in transnational cases.

With the international and US focus on jurisdiction in private litigation involving foreign parties, the next few years promise to bring an exciting and potentially groundbreaking time for the potential of a comprehensive judgments convention to finally emerge.

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© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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