Tag Archive for: 2019 Judgments Convention

HCCH Monthly Update: August 2022

Conventions & Instruments

On 29 August 2022, the European Union deposited its instrument of accession to the HCCH 2019 Judgments Convention, becoming the first Contracting Party to the Convention, and Ukraine deposited its instrument of ratification, becoming the second Contracting Party to the Convention. As a result, the Judgments Convention will enter into force on 1 September 2023 – just over four years after its adoption on 2 July 2019. More information is available here.

On 29 August 2022, Ukraine deposited its instrument of ratification of the HCCH 2007 Maintenance Obligations Protocol. The Protocol, which currently has 32 Contracting Parties, will enter into force for Ukraine on 1 December 2022. More information is available here.

 

Vacancies

Applications are now open for the position of Legal Officer within the Transnational Litigation & Apostille Division of the Permanent Bureau of the HCCH. The deadline for the submission of applications is 14 October 2022. More information is available here.

Applications are now open for the 2023 Peter Nygh HCCH Internship. The deadline for the submission of applications is 30 September 2022. More information is available here.

 

Upcoming Events

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: June 2022

Conventions & Instruments

On 4 June 2022, the HCCH 1961 Apostille Convention entered into force for Indonesia. The Convention currently has 122 Contracting Parties. More information is available here.

On 22 June 2022,  the Philippines deposited its instrument of ratification of the HCCH 2007 Child Support Convention. With this ratification, 44 States and the European Union are now bound by the Child Support Convention. It will enter into force for the Philippines on 1 October 2022. More information is available here.

 

Meetings & Events

On 1 and 2 June, the HCCH Regional Office for Latin America and the Caribbean organised a judicial training on the HCCH 1980 Child Abduction Convention in partnership with the Judicial School of Bolivia.

On 23 and 24 June, the HCCH participated in the Conference on Conflicts of Jurisdiction organised by the Journal of Private International Law and the Singapore Management University. More information is available here.

On 30 June and 1 July, the HCCH participated in the Regional Forum “HCCH 2019 Judgments Convention: Prospects for the Western Balkans”, organised by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) and the Center for International Legal Cooperation. More information is available here.

 

Upcoming Events

The webinar “Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions”, organised in partnership with the Asian Business Law Institute (ABLI), will be held on 27 July 2022. More information is available here.

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: January/February 2022

Meeting of the Council on General Affairs and Policy

The Council on General Affairs and Policy of the HCCH met online from 28 February to 4 March 2022, with over 450 participants. Over the course of five days, HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Several important developments relating to Membership and HCCH Conventions occurred during the meeting:

  • El Salvador deposited its instrument of acceptance of the Statute, becoming the 91stMember of the HCCH.
  • Ecuador signed the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol and deposited its instrument of ratification of both instruments, which will enter into force on 1 July 2022.
  • The United States of America signed the 2019 Judgments Convention, becoming its sixth signatory.

More information on these developments is available here.

 

Other developments

 

Conventions & Instruments

On 1 January 2022, the HCCH 1965 Service Convention entered into force for Georgia. It currently has 79 Contracting Parties. More information is available here.

On 18 February 2022, the Philippines signed the 2007 Child Support Convention. The Convention will enter into force for the Philippines further to the deposit of its instrument of ratification. More information is available here.

 

Meetings & Events

From 11 to 20 January 2022, the International Hague Network of Judges (IHNJ) met via videoconference, with the participation of judges from 35 States. Established in 1998, the IHNJ facilitates international cooperation and communication between judges on the cross-border protection of children. More information is available here.

On 28 January 2022, the HCCH participated in the panel discussion “Thailand and the HCCH Core Conventions: Connecting Possibility and Approach”, organised by the Ministry of Justice of Thailand.

From 7 to 9 February 2022, the International Transfer of Maintenance Funds Experts’ Group met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 14 to 18 February 2022, the second meeting of the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation was held via videoconference. The Group made further progress on the development of draft provisions on parallel litigation in civil or commercial matters, which may occur when separate proceedings are instituted before the courts of different States. More information is available here.

 

Publications and Documentation

On 22 February 2022, the Permanent Bureau launched consultations on the draft Practical Handbook on the Operation of the 2000 Protection of Adults Convention. More information is available here.

On 28 February 2022, the Permanent Bureau announced the publication of the HCCH 2021 Annual Report. More information is available here.

 

Vacancies

Applications are now open for three- to six-month legal internships from July to December 2022. The deadline for the submission of applications is 17 March 2022 (18:00 CET). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: November 2021

Conventions & Instruments

On 17 November 2021, the Russian Federation signed the HCCH 2019 Judgments Convention. Although the 2019 Judgments Convention is not yet in force, the Russian Federation is its fifth signatory. The Russian Federation has been a Member of the HCCH since 2001 and is a Contracting Party to six HCCH Conventions. More information is available here.

Meetings & Events

On 5 November 2021, the HCCH hosted a virtual seminar on the HCCH 1980 Child Abduction Convention and the HCCH 1996 Child Protection Convention for the Supreme Court of Ukraine. This was the second of a series of seminars, organised with the generous support of the EU Project Pravo-Justice, aimed at facilitating the proper and effective implementation of the HCCH Conventions and instruments in Ukraine. More information is available here.

On 8 November 2021, the HCCH Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met via videoconference. The Group continued to work on the development of a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the HCCH 1993 Adoption Convention. More information is available here.

From 15 to 19 November 2021, the HCCH Experts’ Group on Parentage / Surrogacy met via videoconference. The Group discussed the form, structure and focus of the final report that is to be presented to the Council on General Affairs and Policy of the HCCH at its 2023 meeting. More information is available here.

From 22 to 25 November 2021, the HCCH participated in the 24th International Congress of the International Union of Judicial Officers. Secretary General Dr Christophe Bernasconi participated in the panel discussion “Cyber Justice: New Opportunities for the Judicial Officer” and in the roundtable discussion “Cyber Justice – The future of our profession – Evolution or Revolution?”, while Senior Legal Officer Dr Ning Zhao delivered a presentation on the HCCH 2019 Judgments Convention. Dr Zhao’s accompanying article “The HCCH 2019 Judgments Convention – adding essential components for an effective international legal framework on recognition and enforcement” will be published in the proceedings of the Congress. More information is available here.

Upcoming Events

HCCH a|Bridged Edition 2021 will be held online on Wednesday, 1 December 2021. This year’s edition will discuss contemporary issues relating to the application of the HCCH 2005 Choice of Court Convention, including the establishment of international commercial courts around the globe and how it enables party autonomy. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

HCCH Monthly Update: July 2021

Membership

On 1 July 2021, Mongolia deposited its instrument of acceptance of the Statute, becoming the 89th Member of the HCCH. More information is available here.

Conventions & Instruments  

On 3 July 2021, the HCCH 1961 Apostille Convention entered into force for Jamaica. It currently has 120 Contracting Parties. More information is available here.

On 30 July 2021, the HCCH 1970 Evidence Convention entered into force for Georgia. It currently has 64 Contracting Parties. More information is available here.

Meetings & Events

From 5 to 9 July 2021, the Experts’ Group on Parentage/Surrogacy met for the ninth time, via videoconference. The Group discussed the scope of the possible draft Convention on legal parentage and the scope of the possible draft Protocol on legal parentage established as a result of an (international) surrogacy arrangement. More information is available here.

On 27 July 2021, the Permanent Bureau announced that Edition 2021 of HCCH a|Bridged will be dedicated to the HCCH 2005 Choice of Court Convention and held online on 1 December 2021. More information is available here.

On 28 July 2021, the Permanent Bureau launched the Advancing and Promoting the Protection of All Children (Approach) Initiative, in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. As part of this initiative, the Permanent Bureau is organising two competitions: the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition. Submissions are due on 1 October 2021. More information is available here.

Publications & Documentation

On 2 July 2021, the Permanent Bureau announced the publication of translations, in Albanian, Macedonian, and Bosnian-Serbian-Montenegrin languages, of the Explanatory Report on the HCCH 2019 Judgments Convention. These are the first available translations after the official publication of the Explanatory Report in October 2020. They were supported by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), Open Regional Fund for South East Europe – Legal Reform (ORF – Legal Reform). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

“Promoting Foreign Judgments: Lessons in Legal Convergence from South Africa and Nigeria” (Kluwer Law International B.V. 2019)

Pontian N. Okoli has provided the following extensive summary of the findings of his book, which is a revised version of his PhD thesis, completed at the University of Dundee.

In 2019, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial matters came into being. It is a clear reflection of determined efforts to produce a global legal framework that can support the free movement of foreign judgments. One index of success concerning the 2019 Convention would be whether it promotes the free movement of foreign judgments in different parts of the world including Africa. Time will tell. For now, it is necessary to reduce the impediments to the free movement of foreign judgments on at least two levels: first, between African and non-African jurisdictions; and second, between African jurisdictions. The legal frameworks that concern both levels are essentially the same in most African jurisdictions. There is no African legal framework that is equivalent to the Brussels legal regime on the recognition and enforcement of foreign judgments in the European Union.  Thus, litigants need to consider relevant legal frameworks in each country. Foreign judgment creditors must be conversant with appropriate laws to ensure recognition and enforcement of foreign judgments. Nigeria and South Africa are two major examples of African jurisdictions where such awareness is required. 

Nigeria and South Africa are important for several reasons including their big economies and the fact that they are major political players in their respective regions and have significant influence on the African continent. They also make for interesting comparative study –Nigerian jurisprudence is based on the English common law while South African jurisprudence is mixed – based on Roman Dutch law with a significant influence of English law. Also, Nigeria is not a member of the Hague Conference on Private International Law, but South Africa has been a member since 2002. Understanding why these two jurisdictions adopt their individual approaches to the recognition and enforcement of foreign judgments is critical to unlocking the potential to have rewarding relations with Africa in this regard. It is important to understand what brings both jurisdictions together and what separates both, with a view to determining how common perspectives to foreign judgments enforcement may be attained.

There are several bases for legal convergence. Both jurisdictions have two major legal frameworks on foreign judgments – statutory law and the common law. This two-track system is common in Africa and many parts of the Commonwealth including the United Kingdom which has more than one statute (and the common law) on foreign judgments. In Nigeria, there is still significant uncertainty as to which legal framework should apply to relevant cases. Nigerian case law clearly shows that statutory law remains the most important guide for litigants. Essentially, Nigeria relies on a statute of nearly a century old (the Reciprocal Enforcement of Judgments Act 1922 — Chapter 175, Laws of the Federation and Lagos 158). Conversely, statutory law is of less practical importance in South Africa where the Enforcement of Foreign Judgments Act 32 of 1988 has been extended to Namibia only. 

The comparative study finds that it is generally easier for judgment creditors to enforce foreign judgments in South Africa than in Nigeria. Although there is much to discuss concerning legal uncertainties considering the confusing legal framework in Nigeria, case law demonstrates that the South African attitude to recognition and enforcement foreign judgments is instructive. A liberal legal framework that promotes the recognition and enforcement of foreign judgments should be founded in judicial and legislative attitudes that promote the free movement of foreign judgments. In this context, the theories that underpin the recognition and enforcement of foreign judgments are critical. The theories form the common foundation to which jurisdictions around the world can relate. 

The statutory frameworks on foreign judgments are relatively recent. For example, the main Nigerian statute on the subject was patterned on the 1920 UK on the Administration of Justice Act. However, foreign judgments were already being enforced in other jurisdictions as long ago as the nineteenth century through case law (such as Schibsby v Westenholz [1870] LR QB 155 and Hilton v Guyot 159 US 118 [1895]) which reflected the theories that underpin the recognition and enforcement of foreign judgments. The theories of reciprocity, obligation and comity have been applied with varying degrees of success in different jurisdictions. These theories either clearly apply to Nigerian and South African contexts (for example, through specific legislative provisions in Nigeria) or they have been discussed by the courts in both jurisdictions. The first step should be an agreement on what should drive the recognition and enforcement of foreign judgments. Each of these theories has been criticised rather substantially, and it may be difficult to build on any ‘pure theory’.  It would be helpful to adopt an approach that encourages the free movement of foreign judgments subject to a consideration of State interests. Such an approach would attach some degree of obligation in the recognition and enforcement of foreign judgments subject to narrow gaps for defence. This can be illustrated through the application of public policy to frustrate the recognition and enforcement of foreign judgments. Such an obligation should be qualified. Apart from drawing on an analysis of the major theories on the subject, adopting this qualified obligation approach has the benefit of a universal standpoint that is shaped by practical and political realities. This is more pragmatic than strictly applying any traditional theory that is entirely constructed within a legal culture or legal system.

Litigants should expect the enforcement of foreign judgments to be the rule rather than an exception. Fairness requires a consideration of litigant and State interests. Any approach that considers only one (or one at the expense of the other) is unlikely to be fair or acceptable to many jurisdictions including those in Africa. Already, the jurisprudence in both countries suggests that it would be fair to recover debts and there is scope to presume that foreign judgments should be enforced. This perspective of fairness has greatly influenced South African jurisprudence, and this may also partly account for why there is greater success in attempts to enforce foreign judgments even when the law is contested or may at first seem unclear. An example is Richman v Ben-Tovim 2007 (2) SA 203 where the respondent did not dispute the debt but argued that his mere presence in England was an insufficient basis for the English court to exercise jurisdiction. The South African Court of Appeal, however, considered that a ‘realistic approach’ was necessary and enforced the foreign judgment.  Although some scholars may criticise this judgment for endorsing ‘mere presence’ jurisdiction as it divides common law and civil law systems, the rationale behind the decision is instructive. If a ‘realistic approach’ is to be found, then there is a need to reflect on how to reduce the technicalities that impede the free movement of foreign judgments. Efforts to attain an effective global legal framework that African countries will find useful requires a realistic approach that factors in contextual realities. This realistic approach permeates other aspects of the process that leads to the recognition and enforcement of foreign judgments in Nigeria and South Africa.

An important contextual reality is the characterisation process. How the Nigerian or South African courts characterise a foreign judgment can make a great difference in terms of recognition and enforcement. The way forward is not to create more categories, but to focus on how the foreign judgment may be enforced subject to considerations of fairness to both the litigants and the State. This perspective of ‘cosmopolitan fairness’ also facilitates the attainment of practical solutions in issues that concern jurisdictional grounds. To ensure a realistic approach, and in considering a fair approach for litigants and the State, it is critical to reflect on what ultimate end should be attained. If that end is promoting the free movement of foreign judgments, then it is reasonable to put the onus on the judgment debtor. This does not mean that foreign judgments would be enforced regardless of potential injustice or unfairness to the judgment debtor. However, placing the onus on the judgment debtor implies that the application of jurisdictional grounds should be based on promoting the free movement of foreign judgments. At least four traditional bases of jurisdiction are common to Nigeria and South Africa: mere presence, residence, domicile and submission. A new perspective to this subject may consider what purpose each jurisdictional ground should serve and the aims that should be achieved. The Nigerian legal framework, in principle, reflects this approach of considering jurisdictional grounds in a progressive and purposive manner. In Nigeria, doing business or carrying on business is a common thread that runs through all the jurisdictional grounds. There is also a patchwork of jurisprudence concerning individual grounds of jurisdiction. In South Africa, residence needs to be ascertained on a case-by-case basis as neither Nigerian nor South African statutory laws define residence. 

In the context of jurisdictional grounds, the lack of interpretational certainty in both countries suggests that there is considerable scope to adopt any approach or combination of approaches that helps to solve problems in a practical way. In dealing with impediments to enforcing foreign judgments in a manner that ensures sustainable progress, there should be a clear consideration of systematic flexibility. In other words, fine demarcations in the context of traditional jurisdictional grounds may not be of practical help in efforts to facilitate the recognition and enforcement of foreign judgments. Any bias against a jurisdictional ground should be re-evaluated in a manner that factors in contextual realities. There should be a consideration of international commercial realities and in a fast-evolving global order that is driven by increasingly complex international commercial transactions. Any approach that focuses on territorial considerations vis-à-vis jurisdictional grounds does not reflect this global order in which increased movement, complex international commercial transactions and the borderless nature of the Internet are important features. This global order requires a result-oriented approach rather than a recourse to any traditional approach that is driven by technicalities. For example, the question should not be whether a judgment debtor was ‘present’ in the foreign country but what would amount to presence that is effective for the purposes of enforcing foreign judgments. This reasoning may be replicated for residence or domicile as well. 

The need for a ‘realistic approach’ also extends to public policy. There are clear foundations in Nigerian and South African law that support a narrow application of public policy during legal proceedings to recognise and enforce foreign judgments. This is so although there have been significant interpretational difficulties in both jurisdictions and judgment debtors try to frustrate the enforcement of foreign judgments by relying on defences that are anchored to public policy. For example, characterising damages awarded by the foreign court as compensatory rather than punitive could help to ensure judgment creditors do not go away empty-handed. This is especially so where such judgment creditors are entitled to realising their foreign judgments. 

Legal certainty and predictability cannot be driven by a purely circumstantial application of legal principles or consideration of legal issues. But it is also true that the law should not stand still. In this regard, it is instructive that Nigeria and South Africa have areas of possible legal convergence even though they operate considerably different legal cultures. However, the domestic jurisprudence of their different legal cultures does not undermine their common perceptions of fairness and the need to enforce foreign judgments. What is lacking considerably is the right attitude to ensure that the laws already in existence are interpreted progressively and purposively. This requires a robust institutional approach that is driven by the courts. Of course, clear and certain statutory laws should be in place to promote the free movement of foreign judgments. However, legal comparative analysis concerning Nigeria and South Africa demonstrates that the use of statutory laws does not necessarily guarantee legal certainty. The relative success of South Africa in enforcing foreign judgments has been driven by the courts considering the common law. Statutory law has been extended to only one African country. Any foreign legal instrument or convention (at the global or regional level) cannot function effectively without courts that are inclined to recognise and enforce foreign judgments. For example, article 10 of the 2019 Judgments Convention provides that the court addressed may refuse the recognition or enforcement of a foreign judgment if the damages do not actually compensate a judgment debtor for actual loss suffered. The role of the courts is critical to the success of such legal provisions.

The possibility of African countries such as Nigeria (that are not members of the Hague Conference) ratifying the 2019 Convention cannot be discounted. There is a growing trend of countries signing up to Hague Conventions even though they are not members of the Conference. However, both African and non-African countries require robust legal and institutional frameworks that will support the free movement of foreign judgments. Such legal frameworks should be anchored to an appropriate paradigm shift where necessary.