The Hague Convention of 2 July 2019 (Judgments Convention or Hague 2019) entered into force between the European Union Member States (excluding Denmark) and Ukraine on 1 September 2023, and will enter into force in Uruguay on 1 October 2024.

On 12 January 2024^[1], the United Kingdom signed but did not ratify Hague 2019, as did Israel, Costa Rica, the Russian Federation, the United States, Montenegro and Northern Macedonia.

The purpose of Hague 2019 is to facilitate recognition and enforcement of a judgment rendered in a Contracting State (the State of origin) in another Contracting State (the requested State), by harmonizing conditions for exequatur and excluding review of the merits of the foreign judgment (Article 4(2)).

By doing so, Hague 2019 fills the gap left by the 2005 Hague Convention, which has the same scope, but applies in situations where judgment stem from an exclusive choice-of-court agreement. Hague 2019 and Hague 2005 lag behind Recast Brussels I Regulation (2012) and the Lugano Convention (2007), which (i) determine the competent court and (ii) harmonize not only the conditions but also the exequatur procedure, by simplifying it (Lugano 2007) or abolishing it (Recast Brussels I).

Hague 2019 thus has a limited but worthwhile purpose. As the Hague Conference on Private International Law (HCCH) has 91 members, it is hoped that this moderate ambition will be followed by widespread ratification, to elevate this instrument to the same level as the renowned 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, in force in nearly 170 countries.

Beyond the original features of this new instrument, its impact on post-Brexit judicial cooperation across the Channel should be assessed in the context of the UK’s recent accession.

Hague 2019: key features

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Convention scope

Limitations due to the definition of a judgement rendered in civil and commercial matters

First, unlike Recast Brussels I and Lugano 2007, which allow it under conditions - i.e. jurisdiction over the merits of the dispute and/or adversarial proceedings - Hague 2005 (Article 4(1)) and Hague 2019 (Article 3(1)(b)) both exclude recognition and enforcement of provisional and protective measures.

Second, again departing from Recast Brussels I and Lugano 2007 and following Hague 2005's model, civil and commercial matters are defined restrictively.

Thus, beyond the customary exclusions concerning decisions in revenue, customs and administrative matters (Article 1(1)), personal and family matters (Article 2(1)(a) to (d)), arbitration (Article 2(3)) and insolvency proceedings (Article 2(1)(e)), additional exclusions are notably provided in carriage of passengers and goods (Article 2(1)(f)), defamation and privacy violations (Article 2(1)(k) and (l)), intellectual property (Article 2(1)(m)) or competition law (Article 2(1)(p)).

Third, according to the European instruments, it is enough for the judgment to fall "principally" within the scope of civil and commercial matters, (i) even if it rules on a preliminary question or (ii) if it is based on a preliminary judgment which does not fall within such matters.

Hague 2005 and Hague 2019 do not provide for this second extension (Article 10(2)) (Article 8(2)), and grant the first only if the "object of the proceedings" relates to civil and commercial matters (Article 2(3)) (Article 2(2)). Yet, unlike European instruments uniformly interpreted by the European Court of Justice (ECJ), "object of the proceedings" may be interpreted differently from one Contracting State to another.

Limitations due to the multiplication of opt-out mechanisms

As Hague 2019 aims to gather countries with diverse legal traditions, it provides a number of opt-out mechanisms to limit its scope of application. Of the three main ones, the first two already exist under Hague 2005, while the third is specific to Hague 2019.

First, if they have a “strong interest” to do so, Contracting States can identify matters in which Hague 2019 will not be applicable (Article 21) (Article 18). In contractual matters, such a mechanism could potentially thwart parties' legitimate expectations, particularly if the State declaration is made (i) after the contract has been signed, (ii) but before the dispute has arisen.Under Hague 2005, Denmark and the UK have exercised this option in relation to insurance contracts. Under Hague 2019, the EU has used this to exclude non-residential leases on real estate located within the EU. At this stage, the UK Government does not intend to make such a declaration^[2].

Second, a State may declare it will oppose recognition of a foreign judgment if the parties and all relevant elements of the dispute are located in its territory (Article 20) (Article 17). Such a declaration could be detrimental to choice of court agreements, where the parties, (i) located in State A (the requested State), (ii) would, for reasons of neutrality, have given jurisdiction to the courts of State B (the State of origin).

However, although this option is provided for by Hague 2005, it has not been exercised by any State.

Third, unlike Hague 2005, Hague 2019 allows Contracting States to declare, within 12 months of the accession of a new State, that they will not apply the convention in its respect (Article 29).

The diplomatic consequences of such a declaration, implying a lack of trust in the judicial system of a sovereign State, suggest that it should rarely be used. Especially as it is possible to opt for a casuistic and judicial approach, based on the ground of non-recognition for violation of public policy (see above).

On 24 April 2023, the EU has not used this mechanism towards Ukraine, considering that “there are no fundamental obstacles, such as related to the independence and efficiency of the judiciary, the fight against corruption or the respect of fundamental rights, which could prevent the EU from entering into treaty relations with Ukraine”^[3].

Convention effects

Exequatur conditions: harmonization

Hague 2019 provides that the requested State (i) shall ensure that the judgment is eligible for recognition and enforcement, by verifying the links between the dispute and the State of origin (Articles 5 and 6), and (ii) may oppose such recognition and enforcement, on the limited grounds for refusal (Article 7).

The first stage is an indirect assessment of the State of origin's jurisdiction and thus has no equivalent (i) either in European instruments (Recast Brussels I, Lugano 2007), which directly determine which court has jurisdiction to rule on a dispute, (ii) or in Hague 2005, where the jurisdiction is that of the court designated by the exclusive choice-of-court agreement.

The indirect jurisdictions provided for by Hague 2019 are essentially standard - consent of the parties, location of the defendant -, with the exception of those provided for (i) in contractual matters, where the State of origin must be the place of performance of the disputed obligation, and not that of the obligation characteristic of the contract, or (ii) in tort, where the State of origin must be the place where the tort occurred, and not that where the harm was suffered. These original features are mainly due to the United States' influence on Hague 2019 negotiations.

Except for real estate matters, Hague 2019 also provides that the requested State may apply its national law if it is more favorable for determining State of origin's indirect jurisdiction (Article 15). This provision is original and particularly significant in the context of French private international law, where indirect jurisdiction is found only (i) if there are "clear links" between the dispute and the State of origin and (ii) if there is no French court's exclusive jurisdiction.

The second stage is common to European instruments and Hague 2005, without Hague 2019 setting out any original rules.

The grounds for refusal relate to the service of the document instituting the proceedings, which must be made within a period which allows the defendant to prepare his defence (Article 7(1)(a)).

Fraud in obtaining the judgment (Article 7(1)(b)) and manifest incompatibility of the judgment with the public policy of the requested State (Article 7(1)(c)) are also grounds for refusing recognition or enforcement, as well as judgments awarding exemplary or punitive damages that do not compensate a party for actual loss or harm suffered (Article 10)

Hague 2019 also addresses the issue of parallel proceedings and inconsistent judgments (Article 7(1)(e) and f and Article 7(2)).

Exequatur procedure: referral to national law

Like Hague 2005, the exequatur procedure remains governed by the law of the requested State, Hague 2019 merely (i) listing the documents to be produced before the court of the requested State (Article 12) and (ii) requiring the latter to act "expeditiously" (Article 13(1)).

This is a key difference between Hague 2005 and Hague 2019, on the one hand, and Recast Brussels I and Lugano 2007, on the other, which respectively provide for (i) an ex parte procedure enabling a judgment to be enforceable in a Contracting State and (ii) direct enforcement in any Member State.

The UK’s recent accession to Hague 2005 and Hague 2019 is therefore unlikely to bring its judicial cooperation with the EU back up to pre-Brexit level.

Hague 2019: Impact on cross-Channel enforcement?

Hague 2019 will enter into force in the UK within 12 months of the deposit of an instrument of ratification (Article 28(2)). In order to implement it into domestic law, the Government will rely on the powers provided in the Private International Law (Implementation of Agreements) Act 2020, it being specified that Hague 2019 will cover all 3 jurisdictions of the UK (i.e. England & Wales, Scotland and Northern Ireland). Ratification is unlikely to occur before the next General Election, which must be held at some point before 28 January 2025.

Hague 2019 will then apply in all Contracting States, except in the event of declaration of opposition, under Article 29 (see above).

In this respect, as anticipated and discussed in our previous article, on May 4, 2021, the EU opposed the UK’s accession to Lugano 2007 (i) officially, due to the absence of cooperation as close as that between EU and EFTA States, and (ii) unofficially, in the hope of strengthening the international attractiveness of EU jurisdictions^[4].

However, a priori, the EU should not declare it does not apply Hague 2019 towards the UK (Article 29): (i) first, because it has not used this provision towards Ukraine, considering its judicial system reliable and (ii) second, because subjecting cross-Channel relations to the Hague Conventions is precisely the path that the EU suggested when vetoing Lugano 2007:

“The Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation (…) The Commission is planning to propose EU conclusion of the 2019 Hague Judgments Convention in the near future. In the case the United Kingdom concludes that Convention, it would apply to the future judicial cooperation with the EU”^[5].

Above all, unlike Recast Brussels I and Lugano 2007, Hague 2019 neither determines jurisdiction nor harmonizes the exequatur procedure, which will still be governed by the national law of the requested State (see above). Hague 2019 is therefore not a real alternative to Lugano 2007, which explains why the UK's priority remains to join the latter^[6].

Actually, the benefits of the UK’s accession to Hague 2019 seem limited.

• EU and UK judgments will benefit from the harmonized exequatur conditions of Hague 2019 or, if more favorable, the national law of the requested State.

This will be a real advantage, particularly for the enforcement of UK judgments in Italy or Germany, which - in principle - (i) verify the jurisdiction of the State of origin according to their own national rules, (ii) or, in the case of Germany, ensure that an equivalent German judgment could have been recognized and enforced in the State of origin. Conditions will also be improved for EU judgments, as Hague 2019 allows a less stringent verification of indirect jurisdiction than that applied by English courts under Common Law^[7].

• The situation remains unchanged, however, as regards exequatur procedure, since unlike Recast Brussels I (direct enforcement) and Lugano 2007 (ex parte enforcement), under Hague 2005 and Hague 2019, the judgment creditor will have to initiate an adversarial procedure ab initio, subject to the specificities of the requested State, and thus with an increase in time and cost of enforcement.

In this respect, this is a slight improvement for EU judgments, since Hague 2019 provides for a genuine exequatur procedure^[8] (without review of the merits of the foreign judgment), whereas Common Law in principle requires the creditor to bring a fresh claim before the English courts to recover the foreign judgment as a debt from the judgment debtor.