Article by Sarisha Harikrishna
Reinforcing the UK’s role in cross-border legal cooperation
The 2019 Hague Judgments Convention is a piece of legislation in private international law that seeks to provide a platform for the dissemination of judgments among its contracting parties. Given that commercial practices worldwide differ in many aspects, it was imperative that a common framework that recognised and enforced foreign judgments at the international level was created. The Convention aims to reduce the risks commonly associated with cross-border litigation while encouraging a positive environment for multilateral trade.
Article 2 of the Convention expressly stipulates that it only applies to commercial and civil judgments and excludes judgments of a criminal, penal or administrative nature. The 2019 Convention has been ratified in the European Union (EU), Ukraine and Uruguay, with the United Kingdom (UK) recently ratifying it in 2024. The Convention will only come into force approximately a year after ratification and will only apply to all judgments in the UK from mid-2025 onwards. It is pertinent to note that the Convention will only apply to the jurisdictions of England and Wales instead of the entirety of the UK. It is far too early to accurately predict the effects of its application on UK judgments, but a detailed comparison with other countries that have embraced the Convention prior would yield promising results.
What possible limitations may arise from the 2019 Hague Judgments Convention?
Commentators have hailed the UK’s action of embracing the 2019 Hague Judgments Convention as long overdue, and that is for good reasons. This version of the Convention applies to a broader range of judgments compared to its 2005 version, which only included exclusive jurisdiction clauses. It is argued that the Convention will bring with it a greater degree of certainty that a judgment of an English court will be recognised in other Contracting States so long as the judgment fits within the eligibility criteria set out under the Convention.
Despite the many benefits that accompany the 2019 Hague Judgments Convention, there have also been many negative side effects that have been raised by legal scholars, namely the fact that the Convention, which only came into fruition five years ago, has a minimum number of contracting parties. As of now, less than 10 jurisdictions have agreed to ratify and adhere to the Convention, leading to questions regarding its legitimacy and effectiveness. Interestingly, a Convention that seeks to set a minimum international legal framework has so few contracting parties. Still, it is hoped that this number will quadruple in a decade.
On the other hand, legal professionals have pointed out that major countries such as the US, which has signed up to the Convention but has yet to ratify it, may never do so. The same sentiments have been echoed about China, and the country seems to have no intention to ratify the Convention in the near future due to conflicts between the provisions of Chinese national law and the Convention. It is submitted that a lack of interest on the part of the world’s two biggest economies showcases an underlying issue that continues to plague the Convention.
Will the 2019 Hague Convention fill in the gaps left by Brexit?
In response to this multifaceted question, the Convention itself may not fill in the large gaps left by the UK’s departure from the EU on matters regarding judicial cooperation in civil and commercial matters. The Hague Convention’s shortcomings stem from its clear inadequacy in terms of assisting serious injury victims at the international level. For instance, an aspect of the Convention that garnered much controversy is that for a claim in tort, the damage must have occurred in the state of origin.
According to the UK Supreme Court’s decision in the case of Brownlie [2021] UKSC 45, a victim of serious injury overseas can bring their claim back to the Courts of England and Wales. However, the adoption of this Convention poses a hurdle in that the action or omission has to have occurred in the state of origin of the judgment, thereby rendering the decision in Brownlie unenforceable. The conflicts in international and domestic law here pose questions on whether the Convention is the best possible answer after Brexit.
Ending remarks
Despite the many cons associated with the adoption of the Hague Convention, it is hoped that the benefits outweigh them. The Convention, which will be adopted in the UK by 2025, has yet to enter its period of infancy, and it is crucial that further work be conducted to examine it even further.
