Developments in PIL Views and comments

Should Russia Sign the 2019 Judgments Convention?

The Russian Legal Information Agency has announced that Russia’s Justice Ministry, acting jointly with the Foreign Ministry and the Supreme Court of the Russian Federation, proposed that the Government pass a recommendation to sign the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ‘Convention’).

Although there were previously fake news circulating on the internet in this respect, it seems that Russia may well ratify the Convention or, at the very least, that Russian elites are contemplating doing so.

But why would Russia do that?

According to the Russian Agency, the answer seems to be that Russia would want to “create conditions for the recognition and enforcement of decisions taken by Russian courts in all [contracting States] of the new Convention.”

So, Russia hopes to improve the enforcement of Russian judgments abroad. This seems quite logical. Improving the enforcement of the forum’s judgments abroad is a common rationale for entering into bilateral treaties on the enforcement of foreign judgments and for having a reciprocity requirement in the forum’s law of foreign judgments.

There is, however, a downside: by entering into a treaty on the enforcement of foreign judgments, the contracting States also commit themselves to enforcing judgments rendered by other contracting States. In other words, if Russia ratifies the 2019 Convention, it will also promise to enforce in Russia judgments rendered by the courts of other contracting States.

The Russian law of foreign judgments is not liberal. The basic rule is that Russia only enforces judgments on the basis of a treaty. While Russian courts have sometimes accepted to enforce foreign judgments in the absence of treaty under the principle of comity, Russian law remains conservative in this respect.

In contrast, many other States have a very liberal law of foreign judgments, and have enforced Russian judgements on the basis of their common law of foreign judgments, without caring for any form of reciprocity. These liberal States include, among many others, the United States and France. In the US, in particular, courts have enforced Russian judgments on numerous occasions (in 2018, Russian judgments were enforced by New York and California courts, for instance). The 2019 Convention will not improve the prospects of enforcement of Russian judgments in those states.

So the main effect of entering into the 2019 Convention may well be that Russia will commit to enforce judgments that it would not enforce today. In other words, the 2019 Convention would certainly liberalize the Russian law of foreign judgments, but it is unclear to which extent it would improve the enforcement of Russian judgments abroad.

Surely, there are other States with a conservative law of foreign judgments. If these other States ratify the Convention, Russia will have improved the prospects of enforcing its judgments in these states. But who are these states and are they planning to sign the 2019 Convention? And are these states Significant trading partners of Russia? Otherwise, why should Russia care?

Germany is no doubt one of the biggest trading partners of Russia, and there is a reciprocity requirement under the German law of foreign judgments. Maybe German courts have denied enforcement to Russian judgments, but maybe they have considered that the prospects of enforcement of German judgments in Russia were such that German courts should enforce Russian judgments. Our German readers will tell.

A major judicial partner of Russia has been, lately, England. The English common law of judgments is pretty conservative, in particular with respect to the assessment of the jurisdiction of foreign courts. Because of Brexit, England is likely to sign the 2019 Convention. By entering into the Convention as well, the enforcement of Russian judgments in England would then improve. This might be enough of an incentive for Russia to enter into the Convention.

It would be great news for the rest of the world if Russia ratified the 2019 Judgments Convention. Whether it would be good news for Russia remains to be seen.

NOTE: The Russian journal Pravovedenie has issued a call for papers on Recognition and enforcement of foreign judgments: problems and prospects: see here.