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Out now: Recognition and Enforcement of Judgments in Civil and Commercial Matters
This book is published as part of Hart’s Studies in Private International Law- Asia series. It is edited by Anselmo Reyes who is a Guest Professor at the Law Faculty of Doshisha University and an International Judge of the Singapore International Commercial Court.
The publisher’s blurb is as follows:
“This collection offers a study of the regimes for the recognition and enforcement of foreign commercial judgments in 15 Asian jurisdictions: mainland China, Hong Kong, Taiwan, Japan, Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka and India. For practising lawyers, the book is intended as a practical guide to current law and procedures for enforcing judgments in the selected jurisdictions. However, it does not stop at describing current law and practice. Of interest to academics and students, it also analyses the common principles of the enforcement regimes across the jurisdictions, and identifies what should be regarded as the norm for enforcement in Asian countries for the purpose of attracting foreign direct investment and catalysing rapid economic development.
In light of the common principles identified, the book explores how laws in Asia may generally be improved to enable judgments to be more readily enforced, while ensuring that legitimate concerns over indirect jurisdiction, due process and domestic public policy are respected and addressed. With this in mind, the book discusses the potential impact that the adoption of the 2005 Hague Convention on Choice of Court Agreements might have on Asian jurisdictions; it also considers the potential impact of the convention for the enforcement of judgments in civil and commercial matters presently being drafted by the Hague Conference on Private International Law.
This timely book argues that it is imperative to adopt a uniform system for the recognition and enforcement of judgments throughout Asia if there is to be traction for the enhanced cross-border commerce that is expected to result from endeavours such as the ASEAN Economic Community (AEC), the Belt and Road Initiative (BRI), CPTPP (also known as TPP-11), and RCEP.
Anselmo Reyes is Guest Professor at the Law Faculty of Doshisha University in Kyoto and an International Judge of the Singapore International Commercial Court.”
Meeting on international transfer of maintenance funds: solutions and good practices
Written by Mayela Celis
A meeting on the international transfer of maintenance funds was held in The Hague, the Netherlands from 16 to 18 September 2019. The Conclusions and Recommendations are available here.
Among the solutions contemplated were the establishment of a centralised point for international transfers for both incoming and outgoing transfer of funds, abolishing the use of cheques and exploring how to increase transparency and cost reduction of the transfer of funds. The meeting also discussed the advantages and disadvantages of bundled payments, as well as the use of blockchain and other payment transfer solutions.
While the Experts’ Group discussed solutions and good practices in the context of the 2007 HCCH Child Support Convention, these are equally relevant to the United Nations Convention of 1956 on the Recovery Abroad of Maintenance Obligations, Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, and other regional or bilateral instruments.
It should be noted that pursuant to its Article 49, the 2007 HCCH Child Support Convention prevails over the 1956 United Nations Convention in so far as its scope of application as between the relevant States coincides with the scope of application of the 2007 HCCH Convention.
The European Union, as a Regional Economic Integration Organisation, approved the 2007 HCCH Child Support Convention, which entered into force for the EU on 1 August 2014 (with the exception of Denmark which has not yet acceded to it)
The HCCH news item is available here.
New article on The Hague judgments project: assessing its plausible benefits for the development of the Indian Private International Law
Written by Saloni Khanderia
Associate Professor Saloni Khanderia (Jindal Global Law School, O.P. Jindal Global University, Sonipat, India) recently published a new paper in the Commonwealth Law Bulletin, titled The Hague judgments project: assessing its plausible benefits for the development of the Indian Private International Law.
The author talks about the two international instruments which come under the esteemed Hague judgments project: the Convention of 30 June 2005 on Choice of Court Agreements [the HCCA] and the recent Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments [the Draft Convention], with specific reference to India. The question that the author raises is whether India should endorse the above two instruments. Even though India is a Member of the Hague Conference, it a non-signatory to any treaty or Convention regarding the international jurisdiction of courts and the consequent recognition and enforcement of foreign verdicts. Thus it becomes interesting to see the stance India should take. Initially, the author provides an overview of the judgments project, followed by the role of the HCCA and the Draft Convention and their applicability and contribution to transnational trade. The article presents a position of India in the sphere of private international law. It further analyses the role of the two instruments on the development of India’s private international law.
The author welcomes the freedom of choice of a forum that is granted to the parties in India in respect of civil and commercial transnational matters. However, there is a need for certainty in several matters. Looking at the jurisprudence it can be seen that the Indian courts have been dismissing cases where the parties have not chosen them as a governing forum. Conversely, the courts have taken cognizance and assumed jurisdiction where the same has been conferred upon them by the agreement. Ratification to the HCCA tends to solve this problem as would subject the Indian private international law to a fixed and consistent set of rules on (dis)regarding the choice of court agreements. HCCA also lays down exceptions in cases on an exclusive choice of court agreements, therefore, its incorporation in the Indian laws would guide the court as to when to disregard the choice of court agreement. The ratification would also help in the holistic development of the private international law by easing the need the file fresh suits for recognition and enforcement.
Indian’s archaic rules on private international law make it necessary for the country to endorse the Draft Convention as it would prevent the Indian courts from enforcing a foreign judgment that has been rendered in violation to such an agreement, on coming into effect. Like the HCCA it would ease the process of recognition and enforcement of foreign judgments as one would not have look
through the domestic laws before moving the courts. It would provide certainty to the litigants as would provide answers to inconsistent judgments and parallel proceedings. Although
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the ground of public policy is seemingly recognized in India, the Draft Convention would enhance the predictability with respect to enforcement as it explicitly confers the requested court with the right to deny the enforcement, for this reason. The above arguments by the author clearly lay out the conclusion that India should endorse the HCCA and the Draft Convention under the Hague’s Judgment Project.