The 2019 Hague Judgments Convention

On 1 September 2023, the so-called HCCH 2019 Judgments Convention, formally known as the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 (hereinafter the “2019 Convention”), entered into force between the EU Member States (excluding Denmark) and Ukraine.

Uruguay has also ratified the 2019 Convention (and will become a party thereto on 1 October 2024), while some other countries have signed the 2019 Convention (but not ratified it yet), such as Costa Rica, Israel, Montenegro, North Macedonia, Russia, the United Kingdom and the United States.

Scope of the 2019 Convention

The 2019 Convention provides for the reciprocal recognition and enforcement of civil and commercial foreign judgments among the contracting states, with a view to enabling and simplifying the cross-border circulation and enforcement of court judgments. It sets forth a number of specific conditions for the recognition and enforcement of foreign court judgments, as well as express grounds for refusing to do so. In that sense, the 2019 Convention provides for a predictable framework regarding the enforcement of judgments issued in another contracting state, by extension allowing litigants to have more certainty and take fewer risks when taking the decision regarding the place where proceedings are to be commenced.

As stated in the preamble of the 2019 Convention, it is intended to “promote effective access to justice for all and to facilitate rule based multilateral trade and investment, and mobility, through judicial co-operation”.

The 2019 Convention is intended to complement the 2005 Hague Convention on Choice of Court Agreements (hereinafter the “2015 Convention”), which is limited in scope to the recognition and enforcement of judgments based on choice of court agreements containing exclusive jurisdiction clauses. In contrast, the 2019 Convention is wider in scope and covers non-exclusive (including asymmetric) jurisdiction clauses.

“Judgment” in civil and commercial matters has the same meaning as that under the 2005 Convention (“any decision on the merit, given by a court”) and includes a decree or order, as well as a judicial settlement, but not interim measures (such as interim injunctive relief), which are excluded from the scope of the 2019 Convention. Additionally, the 2019 Convention does not apply to revenue, customs, administrative, insolvency, anti-trust, privacy, family and inheritance law, arbitration or intellectual property matters and disputes concerning the status and legal capacity of natural persons.

Grounds of Refusal to Recognise

Under the 2019 Convention, a judgment given by a court of a contracting state must be recognised and enforced in another contracting state, subject only to the limited grounds for refusal.

Article 7 sets out the limited and specific grounds upon which the recognition and enforcement of a judgment may be refused (eg. if the judgment is contrary to public policy, there was a due process violation, the judgment was obtained by fraud, there was a violation of prorogation agreements and non-adherence with jurisdictional requirements, there is an inconsistency with earlier judgments etc).

The courts of the requested state cannot review the merits of the foreign judgment or re-open the case (“there may only be such consideration as is necessary for the application of this Convention” (Art 4(2)) but may postpone or refuse the recognition and enforcement if the subject is subject to review in the state of origin (i.e. in case an appeal is pending).

Also, Article 5 contains a list of jurisdictional eligibility criteria for enforcing courts to consider and assess whenever faced with an application for the recognition and enforcement of a judgment by another contracting state; these relate to the jurisdiction of the issuing court, i.e. the Court at the state of origin which issued the judgment, and are met whenever it is shown, inter alia, that the party against whom the recognition and enforcement are sought was habitually resident or had its principal place of business in the state of origin, if they expressly consented to the jurisdiction of the Court at the state of origin, if they argued on the merits of the dispute etc. Once these criteria have been met, the 2019 Convention requires the recognition and enforcement unless, as aforesaid, one of the grounds of Article 7 are present.

Signing by the UK and the US

It should be noted that on January 12, 2024, the UK also signed the 2019 Convention. This was undoubtedly a most welcoming development given the uncertainty and practical difficulties brought about on the reciprocal recognition and enforcement processes for judgments between the UK and the EU as a result of the UK’s departure from the EU and the Brussels Recast regime, given that English judgments are no longer judgments given in a Member State for the purposes of the Brussels Recast Regulation (Article 65). This issue was particularly amplified following the European Commission’s rejection of the UK’s application to rejoin the Lugano Convention.

As such, up until now, the only private international law instrument which could be relied upon across the EU regarding the recognition and enforcement of UK judgments abroad, including in the Republic of Cyprus, was the 2005 Convention; however, due to the “exclusive jurisdiction clause” requirement of the underlying agreement, this approach had significant shortcomings and the 2005 Convention could not always be engaged. As such, once ratified by the UK, the 2019 Convention will clearly facilitate the recognition and enforcement of UK judgments within the EU (and vice versa).

A similar approach could be employed in the future whenever faced with the recognition and enforcement of a US judgment, at least in Cyprus. Due to the absence of any other bilateral or multilateral legal framework between the two countries, up until now fresh proceedings (a civil action) had to be initiated in Cyprus to achieve the “indirect” recognition of a US judgment on the island. It is clear, therefore, that once the USA ratifies the 2019 Convention, the process for the recognition and enforcement of US judgments in Cyprus will become streamlined, easier and significantly faster.

Hopefully, the number of countries ratifying the 2019 Convention will continue to expand, enabling successful parties to secure the recognition and enforcement of their judgments in a foreign jurisdiction of their choice and, in such a way, strengthening international trade.