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.
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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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